M.N. Rao, J.@mdashChallenging the correctness of the judgment of the learned Special Sessions Judge, Chittoor in S.C. No. 4 of 1992 by which respondents 1 to 3 herein A-1 to A-3, were acquitted of the charge under S. 302 read with S. 34, IPC, read with S. 34 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, this appeal was preferred by the State represented by the public prosecutor.
2. The deceased, Erikala Sake Mareppa, belonged to a Scheduled Tribe. The incident occurred, according to the prosecution, on 30-9-1990 at Kammarandlapalli village of Anantapur district. At 4-00 p.m. on that day the deceased and P.W. 1, Gangulappa, who claims to be his son by courtesy, went to an arrack shop in the village where they were joined by P.W. 3, Ramachandra. By the time they reached the arrack shop they found A-1 to A-3 in the shop. A-1 allegedly questioned the deceased as to why he was teasing his female relation and abused him by referring to his caste ''Erikala''. There was a scuffle between the deceased and A-1 and A-1 left the shop along with A-2 and A-3. After sometime P.Ws. 1, 3 and the deceased left the shop to go to their houses. When they reached the house of A-2 they saw A-1 and A-2 sitting on a double bullock cart and A-3 was sitting at a distance in front of the lane. On seeing the deceased, P.Ws. 1 and 3, A-1 got down from the cart shouting, "you Erikala bastard, how dare you talk ill of and laugh at my female relation". The deceased and A-1 then started arguing with each other. Then A-1 at the instigation of A-2 and A-3 took out a dagger from his waist and stabbed the deceased three times on the chest. When P.W. 3 interfered he was also stabbed on the shoulder by A-1. The deceased after pulling out a cart peg walked some distance and fell down. He was again stabbed by A-1 on the left side of the abdomen and on the left thigh and shoulder. Pulling out the cart peg from the deceased, A-1 pierced the same into his mouth. Thereafter all the three accused left the place. The deceased died on the spot.
3. P.Ws. 1 and 2 then took P.W. 3, the injured witness, to the Government hospital at Kadiri in a rickshaw covering a distance of 3 Kms. P.W. 5, Civil Assistant Surgeon, examined P.W. 3 at about 5-40 p.m. on 30-9-1990 and found a stab injury on the left axillary area. Ex. P-3 is the wound certificate issued by him in which the injury was described thus :
"A vertical stab wound in the left axillary area lower end 2 1/2" from the left nipple. The size of the wound 1" x 3/8" and entered the thorax directed from behind forward and inwards. Inner edge is under line, both ends are sharp."
4. At 6-00 p.m. on the same day P.W. 7, the Head Constable of the police station, received the information that a murder had taken place at Kammarandlapalli and so he went to be scene along with a police constable and found the dead body. When he was about to take a report regarding the murder he was informed that P.W. 3 also sustained an injury and was in a critical condition in the hospital. Keeping the police constable at the scene the Head Constable went to the hospital and found P.W. 3 in an unconscious state and so he recorded a statement, Ex. P-1, from P.W. 1 who accompanied P.W. 3 to the hospital. After returning to the police station P.W. 7, the Head Constable, registered Ex. P-1 as crime No. 51 of 1990. The investigation was taken over by the Sub-Inspector of police, P.W. 8, on 1-10-1990. Inquest was held by the Sub-Inspector of Police from 8 am to 11 am on 1-10-1990 in the presence of P.W. 6 and the wife, sons and daughters of the deceased were examined at the inquest. Ex. P-4 is the inquest report. Ex. P-7 is the rough sketch of the scene. The post-mortem examination was conducted by P.W. 4, Civil Assistant Surgeon, Government Hospital, Kadiri on 1-10-1990 at 1-00 p.m. The doctor found the following external injuries on the deceased :
1. Stab injuries 2" x 3/4" x 3" over the chest on left side 2" below left clavicle at mid-clavicular line. Cut-section : fracture of 3rd, 4th ribs present. Lung was cut corresponding to injury.
2. Stab injury 3" x 3/4" x 4" over the chest on left side just above the nipple at mid-clavicular line. Cut-section : Fracture of 6th rib present. Lung, heart were cut corresponding to injury.
3. Stab injury 2" x 2" x 3" over the chest on left side below the nipple at mid-clavicular line. Cut-section : fracture of 8th rib present. Lungs was cut corresponding to injury.
4. Stab injury 1 1/2" x 3/4" x 2" over the chest on left side at 10th intercostal space at anterior axillary line.
5. Incised wound 1" x 1/2" x 1/4" over left axilla at anterior margin.
6. An horizontal incised wound 4" x 1" x 1/2" over the left upper arm on medial aspect at upper 1/3rd.
7. Lacerated wound 1 1/2" x 1/4" and 1/4" over the left leg below the knee on lateral aspect.
5. In the opinion of the doctor the cause of death was due to shock and haemorrhage because of multiple injuries to the vital organs : Injuries 1 to 4 could have been caused by any sharp edged weapon and so injuries 5 and 6. So far as injury No. 7 is concerned it could have been caused by a blunt object. The post-mortem examination report is Ex. P-2.
6. The investigation was taken over by the Inspector of Police. P.W. 9, on 2-10-1990. After completing the investigation he laid the charge-sheet.
7. The case of the prosecution was supported by P.Ws. 1 to 9 and Exs. P-1 to P-10 besides two material objects - blood stained lungi, M.O. 1 and blood stained underwear, M.O. 2.
8. The learned Special Sessions Judge after considering the evidence adduced by the prosecution recorded a finding of acquittal. When P.W. 3 was taken in a rickshaw to Kadiri government hospital they passed trough the police station, but no complaint was given to the police. This was held to be one of the suspicious circumstances by the learned Judge. P.W. 1 testified that he did not consume arrack at the shop. But, it was elicited from P.W. 3 that all the three of them i.e., the deceased, P.Ws. 1 and 3, consumed liquor and shared the bill. This discrepancy was another circumstance to disbelieve the case of the prosecution according to the learned Judge. The learned Judge also held that when P.W. 1 was a close associate of the deceased, being his son by courtesy, he did not go to the rescue when the latter was attacked by A-1. The learned Judge also concluded that there is nothing in the evidence adduced by the prosecution to show that A-2 and A-3 participated in the attack on the deceased.
9. Non-examination of independent witnesses was one more factor based upon which the learned Judge disbelieved the prosecution version.
10. At the threshold stage the learned Public Prosecutor, obviously realising the difficulty of advancing any convincing arguments with regard to the culpability of A-2 and A-3, has fairly conceded that he is not pressing the case against them.
11. The weapon of attack was "belu katti" which, according to P.W. 1, would be used for cutting onions. The weapon was not seized. Of the seven external injuries found on the body of the deceased, the opinion of the doctor was that injuries 1 to 6 could have been caused by any sharp edged weapon and that injury No. 7 - lacerated wound could have been caused by a blunt object. The evidence of P.Ws. 1 and 3 is that only A-1 attacked both P.W. 3 and the deceased with a belu katti. The doctor, P.W. 5 (Dr. R. Venkateswarlu), who examined P.W. 3, found on him a vertical stab wound on the left axillary area lower end 2 1/2" from the left nipple and the size of the wound was 1" x 3/8". The injury, according to him, could have been caused by a double edged weapon. From the medical evidence adduced by the prosecution it is clear that two weapons must have been used in the attack on the deceased and P.W. 3 - one a sharp edged weapon and another a blunt object. But, the ocular evidence of P.Ws. 1 and 3 is to the effect that only one weapon i.e., belu katti was used by A-1 for inflicting the injuries on the deceased as well as P.W. 3. The oral evidence is thus irreconcilably incongruous with the medical evidence.
12. Another important aspect is that it is the case of the prosecution that P.Ws. 1, 3 and the deceased went to the arrack shop and consumed liquor. It is the positive case of the prosecution that the deceased and P.Ws. 1 and 3 went to the arrack shop of Golla Obulesu and after consuming the arrack when they were returning to their houses the incident happened. Although P.W. 1 said that he did not consume arrack, it was admitted by P.W. 3 in the cross-examination that all of them consumed arrack and the bill was equally shared by them. He also said that when they were consuming arrack there was exchange of words between A-1 and the deceased and after A-1 left the arrack shop they had further dose of arrack. It was only after they consumed further doses of arrack and when they were going to their houses the incident happened. According to the prosecution there was no appreciable time lag, not even thirty minutes, between the deceased and P.Ws. 1 and 3 leaving the arrack shop and the commission of offence by A-1. If really the deceased had taken arrack the post-mortem examination would have definitely disclosed it. Ex. P-2, the post-mortem report, shows "Hyoid bone in tact, left pleural cavity contains blood clots. Stomach contains partly digested food. Rice with dhall about 6-8 oz. No particular smell. Liver pale. Bladder empty ....." According to Modi''s Medical Jurisprudence, from post-mortem appearances the presence of alcohol can be detected. The learned author says, "The alcoholic odour is perceptible in the stomach, lungs and brain, unless putrefaction has set in. The mucous membrane on the stomach may be red intensely, congested and inflamed, or it may be only pale. The liver, lungs and brain are usually congested. The blood is generally fluid and dark." (P. 197, 21st Edn.) I think it is, reasonable to conclude that the deceased did not consume arrack before the alleged incident. This aspect thus demolishes the substratum of the prosecution case.
13. I am, therefore, inclined to believe that the incident did not occur in the manner spoken to by the prosecution witnesses. Evidently, in some other incident which must have happened at about the same time the deceased received fatal injuries and P.W. 3 sustained grievous injury; for resons inexplicable a different version was placed before the trial Court. I find it difficult to ignore the aforesaid fatal infirmities. The learned Public Prosecutor could not convince me that the aforesaid infirmities are only trivial which to not go to the root of the prosecution case.
14. I cannot forget the fact that this is an appeal against an order of acquittal. No principle of law is more firmly settled than the scope and jurisdiction of the High Court to set aside a finding of acquittal. Following the ruling of the Privy Council in
15. It is true that the trial Court has not adverted to the above fatal flaws in the prosecution story. But that will not preclude me from examining the record to ascertain the truth; nay, it is my duty to do so. On the evidence placed before the Court by the prosecution it is impossible to conclude that only one conclusion emerges viz., that the accused was guilty of the offence with which he was charged. It is, therefore, not permissible for this Court, in my view, on the basis of the available evidence, to reverse the order of acquittal and convict the accused-respondents.
16. The second limb of the charge is that the murderous attack was because the deceased belonged to a Scheduled Tribe and therefore Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was attracted. Section 3(2)(v) of the aforesaid Act is in the following terms :
"commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
17. The alleged words of abuse uttered by A-1 directed against the deceased that the latter is "Erikala" by caste are inextricably interlinked with the main version of the prosecution story and when I am not inclined to believe the prosecution version as to the manner in which the incident occurred, there is absolutely no basis to hold that the accused-respondents are guilty u/s 3(2)(v) of the Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
18. In the result, the Criminal Appeal fails and is accordingly dismissed.
B.K. Somasekhara, J.
19. This is a State-appeal. The Judgment and order of acquittal of accused passed in S.C. No. 4/92 by the learned Special Sessions Judge, Chittor dated 18-6-1993 are assailed in this appeal. The respondents were accused 1 to 3 in the trial Court. Convenience warrants reference to the parties in the same capacity as they were occupying in the trial Court.
20. The accused were prosecuted by Kadiri police for the offences punishable u/s 302, read with 34 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty to the charges.
21. To substantiate the charges, the prosecution examined as many as 9 witnesses as P.Ws 1 to 9 and got marked 10 documents as per Exs. P1 to P. 10 and two material objects as per M.Os. 1 and 2. The accused were examined u/s 313 Cr.P.C. and were called upon to enter defence. They did not adduce any defence evidence.
22. The case of the prosecution is that the accused are not the members belonging to Scheduled Caste or Scheduled Tribe whereas the deceased is a member belonging to Scheduled Tribe. On 30-9-1993 at about 5 p.m. the accused intentionally caused the death of one Erikala Sake Mareppa at Komaravandlapalle in Kadiri taluk of Chittoor district and thereby committed the offence as alleged. It appears that on 30-9-1993 the deceased and one Ragi Gangulappa, P.W. 1 and Sampathi Ramachandra, P.W. 3 went to the arrack shop of one Obulesu wherein the accused were also present and consumed liquor. While the deceased, P.Ws. 1 and 3 were consuming arrack, it appears that accused No. 1 questioned the deceased about his teasing his kept mistress (concubine) regarding which there was a scuffle between them. The accused left the arrack shop and after some time, the deceased, P.Ws. 1 and 2 came into the village Komaravandrapalle and went towards Balappagaripalle road wherein accused No. 1 was sitting on a stationary bullock cart in front of the house of accused No. 2. Accused No. 3 was also present there. It appears that accused No. 1 again raked up the matter of the deceased teasing his concubine. The deceased denied it. At that time at the instigation of accused Nos. 2 and 3, accused No. 1 took out a dagger and stabbed the deceased on his chest thrice and when P.W. 3 came to rescue the deceased, he was also stabbed by the accused no. 1. The deceased in order to avoid further difficulty removed a cart-peg from a cart nearby, but fell down due to the injuries. It appears that accused No. 1 took the said cart-peg and pierced it into the mouth of the deceased and who died on the spot. Then the accused left the scene of offence. P.W. 3 was taken to the Government Hopital at Kadiri and P.W. 7 who recorded the statement of P.W. 1 registered Crime No. 51/90 of Kadiri Police Station for the alleged offences, issued F.I.R. Ex. P. 5 and handed over the further investigation to P.W. 8, the Sub Inspector of Police, Kadiri rural Police Station on 1-10-1990 at about 6.30 a.m. He conducted the inquest panchnama at the scene of offence as per Ex. P4, prepared a rough sketch of the scene of occurrence as per Ex. P7, examined the witness and searched for the accused who was absconding. P.W. 9 the Inspector of Police of Kadiri Circle took over further investigation from P.W. 8 on the next day viz., 2-10-1990. He examined P.W. 3 in the Government Hospital, Anantapur where he was undergoing treatment. He seized the blood stained Addapanch and blood stained drawer as per M.Os. 1 and 2 under a panchanama. On 7-11-1990 the accused were arrested and on completing the investigation, P.W. 8 filed the charge sheet into Court. The case of the defence is one of total denial.
23. The learned Sessions Judge after hearing both the sides and on the appreciation of the materials before him came to the conclusion that the accused are entitled to the benefit of doubt as there were many doubtful circumstances in the case of the prosecution and accordingly passed the impugned judgment and order of acquittal. The circumstances which influenced the learned Sessions Judge to come to such a conclusion and to pass such order are :
There is suspicion in the case of the prosecution that no one approached the police immediately after the incident although the police station was hardly three furlongs from the place of the incident which gives rise to suspicion about the varacity of the eye witnesses. The eye witnesses P.Ws. 1 and 3 are related to the deceased and therefore, their evidence which is weighed cautiously is not satisfactory. The motive theory of the prosecution about the quarrel between accused No. 1 and the deceased about teasing the concubine of accused No. 1 by the deceased is found to be doubtful. The testimony of the eye witnesses P.Ws. 1 and 3 is contrary to each other since P.W. 3 gave a go-by to the case of the prosecution about the manner in which the incident occurred leading to the death of the deceased. The evidence that the body of the deceased was found in Balappagaripalle road is found to be unbelievable. The evidence of P.Ws. 1 to 3 is found to be discrepant in material particulars regarding the assault of P.W. 3 and the other matter concerning it. Although the incident occurred in a busy locality where independent eye witnesses were available, the prosecution failed to examine them. The witnesses to the inquest proceedings are found to be stock witnesses of the police and there are many doubts in the case of the prosecution which entitle the accused to have the benefit of doubt and acquittal of the charges.
24. The learned Public Prosecutor at the outset tried to attack the grounds of the learned Sessions Judge as above and assisted the Court fully in appreciating the evidence properly with all his fairness. The learned Advocate for the accused while supporting the findings and the operative order of the learned Sessions Judge has pointed out that there are many more circumstances in the case which add to the doubts pointed out by the learned Sessions Judge entitling the accused for an order of acquittal. Such contentions will be dealt with at proper stage.
25. Notwithstanding the stand of the State and the accused and the findings and the order of the learned Sessions Judge, this Court with all its concern and anxiety to do justice in the case is going to examine all facts and circumstances to come to a just conclusion. However, the limitations in law while dealing with an appeal against an order of acquittal will be borne in mind.
26. Here is a case where the deceased is admittedly a member belonging to Scheduled Tribe. P.Ws. 1 and 2 are admittedly his distant relatives, whereas P.W. 3 is his distant nephew. The decased, P.Ws. 1 to 3 and the accused are admittedly the people belonging to rural areas. The incident is said to have occurred at Komaravandlapalle on 30-9-1990 wherein the deceased Erikala Sake Mareppa who is said to be a rowdysheeter was done to death by causing him serious and vital injuries by some assailants. Ex. P4 inquest report which was drawn up by P.W. 8 on 1-10-1990 appears to be not in serious challenge. P.W. 6 the inquest witness has also spoken about it. The injuries on the deceased are mentioned in Ex. P4 with all details and they being the cause of death is not in challenge. The fact that the dead body of the deceased was subjected to post mortem examination by the police through the Medical Officer, P.W. 4 who conducted the same on 1-10-1990 from 1 p.m. is not in challenge and Ex. P2 the postmortem report bears testimony to it. The medical evidence in the case through the testimony of P.W. 4 and postmortem report Ex. P2 brings out the following 7 injuries found on the deceased which correspond to the injuries mentioned in Ex.P4 :
1. Stab injury 2" x 3/4" x 3" over the chest on left side 2" below left clavicle at mid clavicular line. Cut section : fracture on 3rd, 4th ribs present. Lung was cut corresponding to injury.
2. Stab injury 3" x 3/4" x 4" over the chest on left side just above the nipple at mid-clavicular line. Cut Section : Fracture of 6th rib present. Lung, heart were cut corresponding to injury.
3. Stab injury 2" x 2" x 3" over the chest on left side below the nipple at mid-clavicular line. Cut Section : fracture of 8th rib present. Lung was cut corresponding to injury.
4. Stab injury 1 1/2" x 3/4" x 2" over the chest on left side at 10th intercostal space at anterior axillary line.
5. Incised wound 1" x 1/2" x 1/4" over left axilla at anterior margin.
6. A horizontal incised wound 4" x 1" x 1/2" over the left upper arm on medical aspect at upper 1/3rd.
7. Lacerated wound 1 1/2" x 1/4" x 1/4" over the left leg below the knee on lateral aspect.
Ex. P2 confirms that the death was due to the injuries suffered by the deceased to his vital organs. The cross-examination of P.W. 4 as a whole does not question the cause of the death being homicidal in nature. Even before this Court, the learned Advocate for the accused has not raised any controversy in this regard.
27. In a case like this where the prosecution has totally depended upon the ocular testimony of two witnesses - P.Ws. 1 and 3 wherein the examination in chief is not much, the repetition of the relevant portions about the incident may be necessary and useful. To repeat such portions in the testimony of P.W. 1 reads thus :
"..... About 3 years ago at about 4 p.m. I went to Kommaravandlapalle. Then myself and the deceased Mareppa went to the arrack shop of one Obulesu around 4.30 p.m. A-1 was also in the said arrack shop. At that time Ramachandra who is the son of the deceased came to the said arrack shop. Then A-1 asking decased as to why he was staring at his female relations and why he was laughing at them (matter in vernacular omitted.-Ed.) Then there was subtle between them. Then A-1 left the arrack shop. After consuming arrack by deceased and his son Ramachandra, we were returning to the deceased''s house. On the way the deceased and Ramachandra went to the shop to purchase beedies. A few yards from the place there is a hotel of A-3. A-1 was sitting on a bullock cart that was parked in front of the said shop, when we reached the said hotel A-1 got down from bullock cart and stabbed Mareppa with knife (Belukathi), (danitho Erragaddalu Kostharu) thrice on his chest. When Ramachandra said ''Champandira'' and when he raised his hands, A-1 stabbed him again. The deceased after sustaining stab injuries with a great difficulty got up and removed the cart peg but immediately fell down. Then A-1 stabbed the deceased on his left hand on his left side of the of the chest and also on the left knee. A-1 also pierced that cart peg which the deceased removed into the mouth of the deceased. Out of fear I stood away from the occurrence. After A-1 attacked the deceased, he left the scene of offence. I went near Mareppa and found Mareppa died. Ramachandra was alive. Then Gangaiah came to the scene of offence. I asked Gangaiah to get hold of a rickshaw to take the injured to the hospital. We got admitted Ramachandra in a Government Hospital and police came and recorded his statement. It is Ex.P1. The police examined me."
To repeat the statement of P.W. 3 :
"..... More than 2 years ago around 4 p.m. the deceased Mareppa and P.W. 1 were consuming arrack in the arrack shop of Obulesu. After some time A-1 and Mareppa had some quarrel. After the quarrel A-1 stood outside the shop and thereafter myself, the deceased Mareppa went inside the arrack shop. We consumed further arrack in the said shop. Then myself the deceased Mareppa, P.W. 1 went to the shop near Balappabangrupalle road to purchase some cigarettes. At that place, A-1 was sitting on a bullock-cart sans bullocks. Then A-1 looking at the deceased Mareppa said "Emira Naa Chuttapuralini choosi navvuthvu ........." Then Mareppa said he did not stare at his relative. There was some exchnnge of heated words between them. Then deceased pulled the cart peg and beat A-1. Then A-1 attacked the deceased with a knife (Erragaddalu tharigedi) on his left ribs, left upper arm and on left leg. On sustaining injuries Mareppa fell down and when I went to the rescue of the said Mareppa, A-1 attacked me on my left chest. On sustaining injuries I also fell down. After stabbing me the accused ran away from the scene of offence. P.W. 1 was watching the situation from the distance. P.W. 2 and Smt. Vengamma took me on a horse-cart to hospital. I regained consciousness in Anantapur hospital. Police examined me."
28. The substance of the testimony of P.W.s 1 and 3 is : The deceased, P.W.s 1 and 3 and the accused were in the arrack shop of Obulesu at about 4 or 4.30 p.m. Accused No. 1 picked up a quarrel with the deceased complaining that he was laughing at his concubine which resulted in the scuffle between the deceased and accused No. 1. The accused left the arrack shop after consuming arrack and little later P.Ws 1, 3 and the deceased left the arrack shop, and came near the hotel of accused No. 3 called Gopal''s Hotel where accused No. 1 was found sitting on a bullock cart parked in front of the shop of accused No. 2 whereat accused No. 2 was also present. While the deceased went to purchase cigarette in a shop accused No. 1 again raked up the matter about the deceased teasing or laughing at his concubine which was denied by the deceased. Accused No. 1 stabbed the deceased with a knife on his chest more than once. When P.W. 3 tried to intervene, he was also stabbed on his chest by accused No. 1. The accused ran away from the scene of occurrence. The deceased and P.W. 3 were lying at the spot with injuries, the deceased died on the spot. P.W. 3 was taken to the hospital by P.W.s 1 and 2.
29. The cross-examination of P.W.s 1 and 3 regarding the above aspects is totally silent. What is suggested to P.W. 1 as a defence theory regarding the incident is that the deceased and P.W. 3 were thieves and the deceased died due to their quarrels. It is suggested in the cross-examination of P.W. 3 that the deceased had been released from the police custody about two days prior to the incident, that there were differences between him and the deceased in sharing some stolen property and that no incident took place. It is further suggested to him that he suspected that accused No. 1 might have informed the police with regard to the stolen property and therefore, he is deposing falsely against him. Therefore, on the face of it the testimony of P.W.s 1 and 3 could not have been disbelieved regarding the particular events detailed as above. P.W. 7 has recorded the testimony of P.W.s 1 and 3 regarding the fact that the deceased was found dead near the place of incident and the injury on Ramachandra and the fact of he and P.W. 1 taking him to the hopital. What is suggested to P.W. 2 is that the deceased and P.W. 3 used to commit thefts and he is deposing falsely to support P.W. 1 who is his relative. Regarding the matters he spoke as above, there is no challenge.
30. The testimony of P.W.s 1 to 3 that P.W. 3 sustained stab injury during the incident and that he was taken to the hospital and admitted by P.Ws 1 and 2 is further corroborated by positive evidence of the prosecution in the case. P.W. 5 was the Medical Officer at the Kadiri hospital at the relevant time and his testimony confirms that on 30-9-1990 he examined P.W. 3 at 5.40 p.m. to find the following injury :
"A vertical stab wound in the left axillary area lower and 2 1/2" from the left nipple. The size of the wound 1" x 3/8" and entered and thorax directed from behind forward and inwards. Inner edge is under line, both ends are sharp." He was informed by P.W. 3 that he sustained the injury at about 4 p.m. Ex. P3 is a wound certificate issued by P.W. 5 and it corroborates the testimony of P.W. 5. In Ex. P3 it is mentioned that P.W. 3 was seen in the hospital on 30-9-1990 at about 5 p.m. when the examination was commenced and it was disclosed that he sustained the injury at about 4 p.m. due to a stab. The Doctor P.W. 5 is not all cross-examined regarding the above matters and the contents of Ex. P3. It is in the evidence of P.W. 7 the Head Constable of Kadiri police station that on 30th September, 1990 at 6 p.m. he got the information that a murder had occurred at Kommaravandlapalle, he rushed to the scene of offence along with a constable where he found the dead body of the deceased Mareppa, he was about to take the complaint when he was informed that P.W. 3 had sustained injury and that he was in a critical condition in the hopital and therefor, he left P.C. 1381 at the spot to guard the dead body and rushed to the hospital where he found P.W. 3 in a state of unconsciousness and recorded the statement of P.W. 1 at 8 p.m. and registered the case and issued F.I.R. as per Ex. P5. It is elicited that the rural police station of Kadiri is at a distance of three furlongs from the place of incident, that one has to pass through the police station to go to the hospital, that the distance between Kommaravandlapalle and the Government hospital is about two kilometres and that he had made an entry in the General diary regarding the information received by him, but did not register a case on that. It is suggested to him that there was no dead body at the scene of offence, that he did not receive any information on 30-9-1990 and that a false case is foisted on account of the village rivalries. It is significant to note that no such village rivalries are suggested to P.Ws. 1 to 3 and such a suggestion is coming out for the first time in the cross examination of P.W 7 after a long time. The inquest report Ex.P4 and the rough sketch of the scene of offence Ex.P7 prepared by P.W 8 clearly indicate the location of various items including the place of arrack shop of Obulesu, the road leading to Balappagaripalle, the road leading to the hotel of Gopal and the place of occurrence at a small distance from the hospital and the place of the dead body lying on the road near the said hospital. Significantly enough P.W 8 is not at all cross-examined regarding the place of occurrence mentioned in the inquest report Ex.P4 and the rough sketch Ex. P. 7. It is only suggested to him that there is no dead body of Mareppa at Kommarvandlapalle. A doubt is sought to be extracted from Ex.P8 to P10, the counterfoil of the request to the panch-witnesses, that the place of the inquest to be held is not mentioned therein. To except the encyclopaedia of every thing in such a situation would be beyond the standards and situations. In the absence of any circumstances to entertain such a doubt, the evidence of witnesses like P.W. 8 and the documents depended upon by him as above, cannot be lightly weighed or rejected.
31. As already pointed out, the post mortem conducted by P.W4 the Assistant Civil Surgeon of Kadiri hospital on 1-10-1990 and the post mortem report Ex.P2 and as stated by P.W4, clearly bring out that the deceased sustained as many as four stab injuries, two incised wounds on the chest and one lacerated wound below the knee of the left leg on the lateral aspect. The time of death of the deceased is fixed between 2 to 4 hours after taking food by him. It was 18 to 24 hours prior to the postmortem examination. These are unchallenged parts of the testimony of the Doctor. The Medical evidence thus fully corroborate the testimony of P.Ws 1 and 3 as above.
32. The testimony of P.W.s 1 and 3 regarding the above aspects leading to the death of the deceased and the injury to P.W. 3 is corroborated by sufficient materials in all material particulars. The intrinsic worth of their testimony and the medical evidence is not found to be in doubt. In substance it can be concluded that the consistent, cogent and positive evidence of the prosecution has established beyond any shadow of doubt that the accused No. 1 stabbed the deceased on the chest and caused fatal injuries to him on 30-9-1990 between 4 and 5 p.m. near the hotel of accused No. 4 on the road leading to Balappagaripalle and that he further stabbed P.W. 3 when he tried to intervene in the incident and that the dead body was lying in front of the hotel of accused No. 3 till the post mortem examination was conducted and P.W3 was found to be injured both at the spot and in the hopital when examined and treated by the Doctor. This is the only inference or the view possible from the evidence in the case if it is properly weighed.
33. A doubt is sought to be projected regarding the place of the incident due to certain reasons. It is pointed out that since the deceased and his friends who were eye-witnesses had gone to arrack shop of Obulesu, normally speaking, there should have been the signs of arrack or alcohol in the stomach of the deceased when he died. It is pointed out that there is no positive evidence in the case of the prosecution about the presence of alcohol or arrack in the stomach contents of the deceased. Regarding the stomach contents, Ex.P2 the postmortem report Ex.P2 states :
"..... stomach contains partly digested food. Rice with dhall about 6-8-oz. No particular smell ......."
In his testimony P.W4 the author of Ex.P2 and the Doctor has repeated the same regarding the stomach contents. P.W4 is not cross-examined to any extent regarding these aspects. Therefore, the medical evidence only means that the stomach of the deceased contained partly digested food without any particular smell. The question is, can it mean that there was no smell at all or that there was no arrack at all in the stomach contents ? It is a pure question of fact. There is no positive evidence either regarding the presence of arrack or regarding the absence of the same therein. There is not even an indication in the cross-examination of P.W4 that the absence of ''particular smell'' meant that there was no arrack in the stomach contents of the deceased. In the absence of cross-examination of P.Ws 1 and 3 about the quantity or the quality of the arrack consumed by the deceased, it is difficult to draw inferences about the presence of the arrack to emit particular smell. In these days of adulteration in every commodity including arrack, it may not be wise to draw inferences as to the matters like smell etc. In the considered opinion of this Court, all such inferences should be based on evidence in the case and not with conjuctures or surmises. Moreover, no doubt is raised at any stage during the trail and particularly in the cross-examination of the Doctor P.W4, that the contents of the stomach of the deceased ought to have given the smell of arrack or that the arrack or alcohol was totally absent in the stomach contents. Therefore, there is no sufficient material on record to raise a doubt muchless reasonable doubt regarding the deceased consuming or not consuming arrack. Further more, it cannot be forgotten that the post mortem examination was conducted not immediately after the death of the deceased, but it was done nearly 20 hours after the death. It would be a mater of science to examine whether the arrack contained in the stomach would retain the smell for such a long time. Therefore, judged in any angle, the evidence in the case cannot lead to an inference that the stomach contents of the deceased did not contain arrack or that the deceased did not consume arrack at all, but raise a serious doubt whether he and his friends came to the spot from the arrack shop of Obulesu.
34. The next serious doubt sought to be raised is about the use of the weapon by accused No. 1 against the deceased and P.W. 3. It is true that from the evidence of the eye witnesses P.Ws 1 and 3, it is clear that accused No. 1 stabbed the deceased with a knife, inasmuch as he stabbed P.W3 perhaps with the same knife. It is also clear from the evidence of P.Ws 1 and 3 that only accused No. 1 stabbed both of them and no other person did it. It is also clear that accused No. 1 used only one weapon at the relevant time and not more than that particularly in regard to the deceased. The medical evidence in this regard is very emphatic and category. P.W4 both in his testimony and in his report Ex.P2 has stated that injuries 1, 4, 5 and 6 on the deceased could have been caused by any sharp edged weapon and injury No. 7 could have been caused by a blunt object. He has clearly denied that they could have been caused by different weapons and he has further denied that they could have been caused by a double edged weapon. Therefore, so far as accused No. 1 is concerned, the use of a knife to cause injuries with sharp edged weapon and not double edged weapon is certain and that is not demolished by the defendant to any extent. At this stage, it may be necessary to point out the description of the weapon used by accused No. 1 according to the evidence. P.W3 has described it as "Belukathi" which us clearly used for cutting onions. P.W3 has used the words ''knife.'' No weapon is recovered in this case during the course of investigation. Neither P.W4 nor P.W5 the Doctors is crossexamined to say anything regarding such a weapon described by P.Ws 1 and 3 as above. The sum and substance of the evidence only shows that the deceased used a knife or sharp cutting weapon to stab the deceased and P.W3 and nothing more than that. To draw inferences beyond the evidence in this case much less from medical jurisprudence would be improper which may lead to wrong inferences. However, it is pointed out by P.W5 the Doctor who examined P.W3 that he described the weapon used for causing the injury on P.W3 as the one which might have had double edges and that he has called it a sword, in Ex.P3. Unfortunately both by the Doctor, P.W5 and the defence, the import and the implication of use of such words, appear to have not been seriously taken. P.W5 without giving any reasons described the weapon as having double edges and called it a sword. Neither the prosecution nor the defence bothered about it and allowed some doubt to be left in regard to the weapon used by accused No. 1 to assault P.W3. Significantly no charge is framed regarding P.W3 about accused No. 1 causing him such an injury with such a weapon. Therefore, the seriousness with which the prosecution and the witnesses or the defence acted in regard to such matter, is patent. Therefore, it is possible to raise a doubt whether accused No. 1 might have used more than one weapon or that P.W3 might have sustained such an injury due to any other reason. The second possibility is not open in the nature of the clear, cogent and consistent evidence of P.Ws 1 and 3 about the reason for P.W3 to sustain such an injury. Under the circumstances, this Court is unable to attach any importance for such a doubt or contradiction in the nature of the result which may fall therefrom. The evidence is clear that P.W 3 sustained injury during the incident to prove his presence. The evidence proves that accused No. 1 assaulted the deceased with a knife which may be described as a sharp cutting weapon, resulting in fatal injuries to the deceased. Therefore, the whole question in this case would be to carefully examine whether accused No. 1 stabbed the deceased with a weapon and caused fatal injuries, to accept or otherwise of the case of the prosecution and that has yielded to the positive inference without any doubt.
35. It is pointed out that the evidence of P.W.s 1 and 3 suffers from serious infirmity with material contradictions about the manner in which the incident occurred. It is pointed out that P.W. 3 the injured person and a close relative of the deceased totally gave a go-by to the case of the prosecution that the incident occurred due to the aggressive conduct of accused No. 1 in finding fault with the deceased as having been teasing the concubine of accused No. 1 and in commencing the fight with him and stabbing him with a weapon like knife. It is true that P.W3 has changed the version in this regard as can be made out from his examination in chief extracted above. There remains no doubt and it also appears to be probable that because accused No. 1, more than once, picked up quarrel with the deceased on the ground that he was looking at his concubine and smiling at her and teasing her, he might have been upset and commencced the confrontation as stated by P.W3. It is clear that when accused No. 1 confronted the deceased for the second time, there was some exchange of words and the deceased pulled out a cart peg and beat which must be the result of his stabbing the deceased with a knife and when P.W3 intervened, he was also incidentally stabbed. To that extent there is a swerve in the case of the prosecution. That only discloses that the deceased was responsible for the conduct of accused No. 1 in stabbing him. The theory of accused No. 1 piercing the cart peg into the mouth of the deceased after the incident also appears to be either cooked up or improbable. But such a change in the stand taken by P.W. 3 may not leave a doubt as to the incident as the sum and substance of the case of the prosecution is clearly brought out from the evidence of P.W. 3 which corroborates the testimony of P.W. 1. P.W. 3 being a close relative of the deceased would not have suppressed the truth and he appears to have brought out the truth as stated above. It is significant to note that since P.W. 3 was unconscious or suffering from the injury, could not oblige the Station House Officer and it was on the statement of P.W. 1, the investigating machinery was set into motion and thus the evidence of P.W. 3 cannot be doubted in the circumstances. At the same time, the nature of the incident spoken to by P.W. 3 assumes great importance in finding out the offence committed by the accused particularly when he was the injured witness and a close relative of the deceased.
36. The so-called contradictions in the testimony of P.W.s 1 and 3 as above, may not go to the root of the matter. In view of the clear positive evidence and the medical evidence in the case, the actual evidence leading to the death of the deceased due to the stabbing by accused No. 1, is clearly brought out.
37. Just because P.W.s 1 to 3 are related to the deceased, their evidence cannot be doubted or rejected except that their evidence needs to be weighed with caution. The fact that P.W. 3 has come out with the truth as above excludes the possibility of his showing extra interest in the deceased particularly when he was also a victim in the hands of accused No. 1 in suffering serious injury. Since the evidence of P.W.s 1 and 3 regarding the actual incident and particularly that of the injured with P.W. 3 was sufficient, there was no need for the prosecution to examine any independent witness in the case as contended by the learned Advocate for the accused. It is sought to be demonstrated that P.W. 3 is a man of bad character. In view of the abundant evidence corroborating the testimony of P.W. 3 in addition to his own fair conduct in bringing out the truth as above, the conduct evidence may not play any important role in regard to the credibility of this witness. Except suggesting that the inquest witnesses are stock witnesses of the police, there is no material to support it. Therefore, it can be safely concluded that the evidence of P.W.s 1 and 3 regarding the occurrence of the incident as above, cannot be doubted.
38. It is contended by the learned Advocate for the accused that there is inordinate delay in recording the first information report by P.W. 7. On the face of it, there is no delay. The incident occurred between 4 and 5 p.m; P.W. 7 learnt about the incident at about 6 p.m, went to the spot to find the dead body of the deceased, but having heard that P.W. 3 has been in a critical condition in the hospital due to the injury suffered by him, went to the hospital, attempted to record his statement, but as his condition did not improve till 7.45 p.m, he recorded the statement of P.W. 1 at 8 p.m., registered the case and took up investigation. It appears that he also made a note in the General Diary. But in law that itself may not operate as first information report for the purpose of investigation. Strictly speaking the information of the incident reached the police station at 6 p.m. upon which immediate steps were taken by P.W. 7 as above. Even then, under the circumstances stated above, the gap between the time of incident and time of registration of the first information report which is about 3 hours and which is properly explained, cannot be held to be delay or inordinate delay much less to think that there was an attempt on the part of the investigating agency to implicate wrong persons as accused. In fact no such suggestion is made by the defence in the cross-examination of the principal witnesses in addition to P.W.s 7 to 9, the Investigating Officers.
39. As already pointed out, we are dealing with an appeal against an order of acquittal by the Sessions Judge, u/s 378(1) Cr.P.C. The parameters within which the appellate Court can act in such an appeal are legally de-limited within the implication of Section 378(1) Cr.P.C. and the decided cases. The provision is intended for public safety. The onus is on the State to show that the judgment of acquittal is wrong. The fact that the High Court is inclined to hold a different view is not sufficient to interfere with the order of acquittal. There cannot be an inference that an order of acquittal is bad when the view taken by the trial Court is plausible, was reasonable. The inference is justified when the view taken by the trial Court is perverse. The appellate Court must scan the reasoning of the trial Court. The reasons based on evidence by the trial Court, cannot be lightly brushed aside. When the view taken by the trial Court is reasonable, the order of acquittal cannot be set aside. The reversal of an order of acquittal is justified in the following cases :
1) Only in special circumstances,
2) when the judgment is perverse,
3) when there are trifling contradictions in evidence,
4) when the reasonging given by the trial Court is totally unsustainable,
5) when there is order on speculation,
6) when the evidence is disbelieved in conjuctures and surmises and
7) on appreciation of facts and circumstances.
40. Having examined the case in the light of the proper appreciation of evidence of the prosecution as above the only one view possible is that the prosecution has established the incident of stabbing the deceased by accused No. 1 with a knife and no other view is possible. The so-called contradictions in the evidence of the prosecution are not contradictions at all going to the root of the matter muchless, to blast the substratum case of the prosecution nor the true meaning of the expressions of the prosecution witnesses. The judgment of the learned Sessions Judge appears to be totally perverse. In the first place, the learned Sessions Judge has not weighed the evidence of the prosecution and has gone by impressions as noted by him in paras 7 to 13 of his judgment. It is needless to say that the learned Sessions Judge has dealt with the matter in a most cursory perfunctory and a summary way. He has not at all considered the medical evidence in the case. So many other matters which were canvassed before this Court as above which are glaring are not at all even made a reference by the learned Sessions Judge. Although the medical evidence is categoric that the injuries suffered by P.W. 3 is grievous in nature caused by a sharp edged weapon, he calls it a simple injury (Para 7 of his judgment). The small contradictions as it should happen in a rural area among the innocent and ignorant people are made much of, by the learned Sessions Judge without giving convincing reasons. There appears to be a clear departure from the known method of appreciation of evidence to draw inferences in a case like this by the learned Sessions Judge. In a way, the judgment of the learned Sessions Judge appears to be a memorandum of what all he felt about the materials in the case and not the discussion of the evidence to draw correct conclusions. Even the alternative view which may be from the evidence is not pointed out by learned Sessions Judge. The cursory impressions recorded by the learned Sessions Judge are made a basis to hold that they throw grave doubts on the case of the prosecution. Under these circumstances, this Court within its powers both under Sections 378(1) and 482 of the Code of Criminal Procedure has taken the pains to examine the evidence in detail so as to secure the ends of justice and not merely to go by certain half baked expressions of the proof of an offence beyond reasonable doubt. It must be emphasised that all doubts may not become the basis to acquit the accused. They must be reasonable doubts which should prevent a man of reasoned and ordinary prudence from believing the occurrence of the offence. The rational thinking in determining reasonable thinking is explained by Cockbura, C.J., in R. v. Castro Fields Law of Evidence Vol. 1, Page 393 as hereunder :
"It is the business of the prosecution to bring home guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled must be such as rational thinking, sensible men may fairly and reasonably entertain; not the doubts of a vascillating mind that had not the moral courage to decide but shelters itself in a vain and idle scepticism. There must be doubts which men may honestly and conscientiously entertain."
41. The learned Sessions Judge appears to have not conformed to such a settled principle of law and appears to have dealt with the matter quite contrary to the same. It is shocking to note that where the charge comprises an offence punishable u/s 3(2)(v) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989, not even a slight reference is made whether such a charge is established or not. As already pointed out, although there was a clear allegation or sufficient material on record that accused No. 1 stabbed P.W. 3 with a knife or some weapon, not even a charge is framed in that regard by the trial Court. Thus, the learned Sessions Judge has not only acted inconsistent with his duties as a Sessions Judge, but also in utter disregard to the known methods of dealing with a sessions case, let alone the finality of the matter. It is for the learned Sessions Judge to judge himself in this regard in addition to the concerned authorities of this Court.
42. Having found that the learned Sessions Judge has failed to correctly deal with the matter to come to the conclusion that the prosecution has established the incident as above leading to the death of the deceased Erikala Sake Mareppa and having found that the prosecution has established the same, the time is opportune to examine whether the charges against the accused are established in the manner levelled against them. In so far as accused Nos. 2 and 3 concerned, the learned Public Prosecutor has fairly conceded that the materials for prosecution are totally inadequate to prove the charges against them except their presence both at the arrack shop of Obulesu and near the place of incident. There is not even the slightest expression on the part of P.W.s 1 and 3 that accused Nos. 2 and 3 played any part in instigating accused No. 1 either to assault the deceased or P.W. 3. It is not the case of the prosecution that they utter any words of derogation against the deceased just because he was a member belonging to Scheduled Tribe. Therefore, in so far as accused Nos. 2 and 3 are concerned, the prosecution has not established the charges beyond any shadow of doubt. In so far as accused No. 1 is concerned, there was a clear motive and preparation for accused No. 1 to cause the death of the deceased. He had the grievance against the deceased that he was smiling at his concubine and teasing her. He gave a vent to such a doubt not only in arrack shop but also near the hotel of accused No. 3. It is in furtherance of such a motive, he stabbed the deceased with a knife on the chest several times. The strong medical evidence in this regard brings out the intention of accused No. 1 in inflicting such injuries on the deceased with a weapon to cause his death or his intention to cause such bodily injury as was likely to cause his death or with the knowledge that he was likely by such act to cause the death of the deceased. The real conduct of accused No. 1 in such a situation is, preparation, the nature of weapon he used and the number of injuries he caused to the deceased on his vital part viz., chest and the provocation given by him to the deceased to assault him with a cart peg and they are all clear indications of his premeditated mental condition to cause the death of the deceased. This is a clear case of culpable homicide u/s 299 I.P.C. punishable u/s 302 I.P.C. The learned Advocate for the accused has pleaded that in view of the provocation given by the deceased himself by assaulting the accused No. 1 with a cart peg, the case falls within exception No. 1 of Section 300 I.P.C. Since accused No. 1 was deprived of the power of self-control by grave and sudden provocation leading to the death of the deceased. In view of the elaboration of the contents of exception No. 1 to Section 300 I.P.C., the so-called provocation for accused No. 1 to stab the deceased was not due to the deceased, but because of his own provocating the deceased to assault him with a cart peg. The deceased had never intended to assault accused No. 1 but for his repeated teasing the concubine of accused No. 1. Even assuming that accused No. 1 was provoked by the deceased as alleged above, his own conduct in stabbing him with a knife could not be in the lawful exercise of right of private defence as it exceeded such a right of private defence as per Section 99 I.P.C. Therefore, it cannot be culpable homicide not amounting to murder within the meaning of Exception No. 1 to Section 300 I.P.C. to bring the offence punishable u/s 304 I.P.C. In other words, the prosecution has proved the offence punishable u/s 302 I.P.C. as against accused No. 1 beyond any shadow of doubt. The learned Sessions Judge has not adverted to these aspects. Admittedly the deceased is a member belonging to Scheduled Tribe. It is nobody''s case that any one of the accused is a member belonging either to Scheduled Caste or Scheduled Tribe. The case of the prosecution is not emphatic as to how an offence punishable u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was to be attributed to the accused. The section reads as follows :
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -
Comits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
The ingredients of such an offence to bring home the guilt against the accused are :
(1) the offence should be committed by a person not being a member of the Scheduled Caste or Scheduled Tribe,
(2) the person against whom such an offence is committed should be a member belonging to either Scheduled Caste or Scheduled Tribe,
(3) the offence established against the accused shall be punishable with imprisonment for a term of ten years or more and
(4) such an offence against such a person is committed on the ground that he is a member of Scheduled Caste or Scheduled Tribe.
The expression "on the ground" is the pith and core of the offence to bring home the meaning of ''atrocity'' against the members belonging to Scheduled Caste and Scheduled Tribe. To attract the above provision an offence punishable with imprisonment for a term of ten years or more against a member belonging to Scheduled Caste or Scheduled Tribe should be committed only on the ground that the person against whom such offence is committed, is a member belonging to Scheduled Caste or Scheduled Tribe. The intention part of it is very emphatic. Excepting the abuse of accused No. 1 as against the deceased, as "Emira Erikala Naa Kodaka," no other words was used by the accused even as per the evidence of P.W. 1. P.W. 3 a close relative of the deceased has not even stated that the deceased used such expression so as to offend the deceased. On the other hand, it was a simple quarrel between two persons on the ground that one of them had teased or laughed at the concubine of the other. That was the real motive for accused No. 1 to commit the offence as against the deceased and nothing more than that. Therefore, no offence punbishable u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is brought out beyond any degree of doubt much less reasonable doubt. It is shocking that though the learned Sessions Judge who was presiding over the said Special Court constituted u/s 14, of the said Act, has not even made a small reference in the judgment as to how the charge u/s 3(2)(v) of the said Act is established or not, against the accused. The judgment of the learned Sessions Judge speaks for itself as to how the matter was dealt with. Therefore, both the findings of the learned Sessions Judge and the judgment, and order of acquittal passed by him in regard to accused No. 1 should be set aside; and the same deserve to be confirmed in regard to accused Nos. 2 and 3. Consequently, it is held that the prosecution has established an offence punishable only u/s 302 I.P.C. against accused No. 1 and he is convicted for the same accordingly. It is further held that the prosecution has not established the offence punishable u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against any of the accused. It may not be out of place to mention that the learned Sessions Judge is not mindful of what he is doing in dealing with such a serious matter. After leading evidence, the accused was examined u/s 313 Cr.P.C. and they did not; and only after hearing both sides, the matter came up for disposal by the learned Sessions Judge. In such circumstances, the learned Sessions Judge has to pronounce the judgment u/s 235(1) Cr.P.C. But glaringly the learned Sessions Judge has invoked the provisions u/s 232 Cr.P.C. for acquitting the accused. To remind him of the correct implication of Section 232 Cr.P.C. the repetition of the same may be necessary :
"S. 232. Acquittal :- If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal."
It is the clear finding of the learned Sessions Judge that the accused are entitled to benefit of doubt, in view of certain circumstances noted by him; but it is not the finding of the learned Sessions Judge that there is no evidence against the accused to prove the charges. Thus there appears to be no clear application of mind by the learned Sessions Judge either to the facts or law.
43. Having convicted accused No. 1 for an offence punishable u/s 302 I.P.C., question of sentencing him naturally follow. It is true that by virtue of Section 235(1) Cr.P.C. if the accused is convicted unless the Court proceeds in accordance with Section 360 Cr.P.C. the accused shall be heard on the question of sentence and necessary sentence has to be passed. Having due regard to the admitted facts and circumstances in the case and having heard the learned Advocate for the accused in regard to question of sentence also and having found that the only alternative sentence possible for an offence punishable u/s 302 I.P.C. is either death penalty or imprisonment for life and having found that there are no special reasons either to invoke Section 360 Cr.P.C. or to inflict death penalty, this Court feels that an order of sentence of imprisonment for life may be inflicted on accused No. 1. It may be emphasised that the death penalty may be given only in the gravest of the grave cases and the present case may not answer such a situation, as accused No. 1 is not said to be a habitual offender nor his survival is demonstrated to be destructive of the society. Therefore, accused No. 1 (appellant No. 1) is sentenced to undergo imprisonment for life for the offence punishable u/s 302 of the Indian Penal Code.
44. Consequently, the appeal is allowed in part.
45. In view of several adverse remarks against the learned Sessions Judge, a copy of this judgment shall be sent to him wherever he is working at present.
M. Ranga Reddy, J.
(on difference of opinion between M. N. Rao and B. K. Somasekhara, JJ.) :-
46. This is an appeal preferred by the State against the judgment of the Special Judge, Chittoor in S.C. No. 4 of 1992 acquitting the accused of the offence under Section-302 read with Section-34 I.P.C. and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
47. This appeal came up for hearing before the Division Bench comprising of M. N. Rao and B. K. Somasekhara, JJ., and there was a conflict of opinion between the two learned judges. Hence, the appeal along with their opinions was directed to be placed before me for my opinion u/s 392 Cr.P.C.
48. The substance of accusation against the respondents-accused was that on 30-9-1990 at about 5.00 p.m. A-1 intentionally caused the death of Erikala Sake Marreppa S/o Ramappa at Kummaravandlapalle by stabbing with a knife on the instigation of A-2 and A-3. It was further alleged that the deceased being "Erikala" by caste which is a Scheduled Tribe, the accused are punishable with a higher sentence as provided for under Section-34 of the Scheduled Castes and Scheduled Tribes (Provention of Atrocities) Act, 1989.
49. The prosecution in order to establish the charges framed against the accused, examined nine witnesses and marked Exs. P-1 to P-10. The case of the prosecution as disclosed from the evidence of these witnesses is as follows :
50. The deceased, Gangaiah (P.W. 2) and Sampathi Ramachandra (P.W. 3) and the accused were residents of Kummaravandlapalle within the limits of Kadri Rural Police Station. Erikala Ragi Gangulappa (P.W. 1) was a resident of Yerradoddi village which is at a distance of four miles from Kummaravandlapalle. The deceased and P.Ws. 1 to 3 are Erikala by caste which is a Scheduled Tribe. On 30-9-1990 in the evening at about 4 p.m., P.W. 1 went to Kummaravandlapalle from his village, met the deceased and went to the Arrack shop of one Obulesu along with the deceased. By the time they went there, A-1 was already in the Arrack shop. Some time later, P.W. 3 also came to the Arrack shop. Thereafter, A-1 picked up a quarrel with the deceased questioning as to why he has been teasing and heckling his concubine. There was some altercation between A-1 and the deceased. After some time A-1 went away from the Arrack shop.
51. The deceased and P.W. 3 consumed arrack and thereafter, they along with P.W. 1 proceeded towards the house of the deceased. After going for some distance, the deceased and P.W. 3 wanted to purchase beedies and so they went towards a shop situated close to the hotel of A-3. Then A-1 was sitting on a bullock-cart parked in front of the said shop. On seeing the deceased, A-1 got down from the bullock-cart and stabbed the deceased with a knife thrice on the chest. Then P.W. 3 who was accompanying the deceased tried to interfere and A-1 stabbed P.W. 3 also on the chest. In the meanwhile, the deceased who had sustained injuries pulled out a cart-peg but being unable to move fell down. A-1 again stabbed the deceased on the left side of the chest and on the left knee. Thereafter, he snatched away the cart-peg from the deceased and pierced it into his mouth. After thus attacking the deceased A-1 left the scene of offence. Then P.W. 1 went near the deceased and found him dead. In the meanwhile, P.W. 2 also came there. P.W. 1 took P.W. 3 to the hospital at Kadiri at a distance of 2 Kms in a rickshaw with the help of P.W. 2. P.W. 3 gives a different version regarding the incident which will be dealt with while discussing the merits of the case. P.W. 3 was admitted into the Government Hospital at Kadiri.
52. In the meanwhile, P.W.-7, Head Constable attached to Kadiri Rural Police Station, came to know about the incident at about 6.00 p.m. He then proceeded to Kummaravandlapalle and saw the dead body. He learnt that P.W. 3, who was also injured during the course of the same incident, was shifted to the Government Hospital at Kadiri. So he kept a Constable at the scene of offence, went to the Hospital and recorded the statement Ex. P-1 from P.W. 1 as P.W. 3 the injured was unconscious. P.W. 7 returned to the Police Station and registered a case as crime No. 51 of 1990 and issued an express F.I.R. Ex. P.-5 is a copy of the F.I.R. sent to the court.
53. P.W. 8, the then Sub-Inspector of Police Kadiri Rural Police Station, took up investigation on 1-10-1990 at 6.30 a.m. He visited the scene of offence and held inquest in the presence of P.W. 6 and another. During the inquest, he examined P.Ws 1, 2 and some others. Ex. P-4 is the inquest report. The inquest was completed by 1.00 a.m. He then sent the dead body for post mortem examination. P.W. 4, the Asst. Civil Surgeon, Government Hospital, Kadiri conducted post-mortem examination on the same day at about 1.00 p.m. and found the following external injuries :
1. Stab injuries 2" x 1/4" over the chest on left side 2" below left clavicle at mid-clavicular line. Cut-Section : fracture of 3rd, 4th ribs present. Lung was cut corresponding to injury.
2. Stab injury 3" x 3/4" x 4" over the chest on left side just above the nipple at mid-clavicular line. Cut-section : Fracture of 6th rib present. Lung, heart were cut corresponding to injury.
3. stab injury 2" x 2" x 3" over the chest on left side below the nipple at mid-clavicular line. Cut-section : fracture of 8th rib present. Lungs was cut corresponding to injury.
4. Stab injury 1 1/2" x 3/4" x 2" over the chest on left side at 10th intercostal space at anterior axillary line.
5. Incised wound 1" x 1/2" x 1/4" over left axilla at anterior margin.
6. A horizontal incised wound 4" x 1" x 1/2" over the left upper arm on medical aspect at upper 1/3rd.
7. Lacerated wound 1 1/2" x 1/4" over the left leg below the knee on lateral aspect.
She opined that the deceased died on account of multiple injuries to vital organs. She also opined that injuries 1 to 6 could have been caused with any sharp edged weapon and injury No. 7 could have been caused with a blunt weapon. She further stated in the cross-examination that injuries 1 to 4 could have been caused with a double edged weapon and the death might have occurred about 18 to 24 hours prior to the post mortem examination. Ex. P. 2 is the post mortem certificate given by her.
54. As the condition of P.W. 3 who was admitted into the Government Hospital at Kadiri was causing anxiety, he was shifted to the Government Head-quarters Hospital at Ananthapur for further treatment. P.W. 5 is the Civil Assistant Surgeon who examined P.W. 3. He found the following injuries on P.W. 3.
1. A vertical stab wound in the left axillary area lower end 2 1/2" from the left nipple. The size of the wound 1" x 3/8" and entered the thorax directed from behind forward and inwards. Inner edge is under line, both ends are sharp.
In his opinion the injury could have been caused with a double edged weapon inasmuch as the edges of the injury were clean cut. Ex. P. 3 is the wound certificate issued by P.W. 5.
55. P.W. 9, the Inspector of Police, Kadiri Circle took over investigation from P.W. 8 on 2-10-1990. He examined P.W. 3 on 6-10-1990 at Government Head-Quarters Hospital, Ananthapur and also seized the blood stained cloths of P.W. 3. Subsequently on 7-11-1990 he arrested the accused 1 to 3 and sent them for judicial remand. After completion of investigation he laid the charge-sheet.
56. After the evidence of the prosecution was over the accused were examined u/s 313 Cr.P.C. who denied the truth of all the incriminating circumstances in the evidence. Thus, from what has been stated above, it is clear that P.W.s. 1 and 3 are the witnesses to the incident P.W. 2 came near the scene of offence after the incident and helped P.W. 2 in shifting the injured P.W. 3 to the hospital. P.W.s 4 and 5 are the Medical Officers who conducted the post mortem examination and examined the injured P.W. 3 respectively. P.W. 6 is the panchayatdar in whose presence the inquest was held by P.W. 8. P.W. 7 is the Head Constable who recorded the statement Ex. P. 1 at the hospital, registered the case and issued the F.I.R. P.W. 8 is the Sub-Inspector and P.W. 9 is the Inspector of Police.
57. Before proceeding to discuss the evidence to consider the guilt or otherwise of the accused, it would be appropriate to state as to what has spoken by P.W. 3 during trial. P.W. 3 deposed that on the date of the offence at about 4.00 p.m., himself, the decceased and P.W. 1 were consuming arrack in the arrack shop of one Obulesu at Kummaravandlapalle and at that time A-1, who was also in the arrack shop, picked up quarrel with the deceased and after some time A-1 left the arrack shop. According to P.W. 3 they consumed some more arrack after A-1 had left the arrack shop and then went into the village. When they went to a shop on the way to purchase cigarettes, they noticed A-1 sitting on a stationary bullock-card and A-1 then questioned the deceased as to why he was heckling at his concubine and on account of that there was some altercations. He further stated that at that time the deceased pulled out a cart-peg from the cart and attacked A-1. Then A-1 stabbed the deceased with a knife on the left rib, left upper arm and on the left leg. On sustaining those injuries, the deceased fell down. At that time he (P.W. 3) tried to interfere and A-1 stabbed him on the left side of the chest. After thus attacking the deceased, A-1 ran away. This is the version given by P.W. 3 with regard to the incident. He further stated that P.W. 1 was watching the incident from some distance. According to P.W. 3. P.W. 2 and one Vengamma took him on a horse-cart to the hospital at Kadiri. Thus, there is variance in the evidence of P.Ws. 1 and 3 with regard to the incident.
58. The case of the prosecution as disclosed from the record of investigation, the charge-sheet and the commital order is in brief as follows :
On 30-9-1990 in the evening at about 5.00 p.m. P.Ws. 1, 3 and the deceased went to the arrack shop of one Obulesu at Kummaravandlapalle. At that time A1 to A3 were present in the arrack shop consuming arrack. On seeing the deceased, A-1 questioned the deceased as to why he was teasing his concubine. On account of that, there were some altercations between the two. After some time, the Accused 1 to 3 left the arrack shop and proceeded into the village. P.Ws. 1, 3 and the deceased continued to drink arrack for some time and they also left the place within about half an hour after the departure of the accused. While they were going into the village, they saw A-1 sitting on a stationary bullock cart in front of the house of A-2. A-2 and A-3 were also there at some distance. A-1 again abused the deceased for heckling at his concubine, again there were some altercations between them. At that time A-2 and A-3 instigated A-1 to attack the deceased by saying (matter in vernacular omitted -- Ed.). Then A-1 pulled out a knife from his waist and stabbed the deceased thrice on the chest. On seeing this, P.W. 3 intervened and he was also attacked by A-1 with a knife. Meanwhile, the deceased got up with great difficulty and pulled out a cart peg, but fell down within a short distance. A-1 then stabbed the deceased again took the cart peg from the deceased and pierced the same into his mouth. After thus attacking the deceased, the accused went away from that place. This is the version disclosed by the prosecution from the record of investigation and the commital order. Though the record of investigation and the commital order shows that A-2 and A-3 were present at the arrack shop as well as the the scene of offence, the evidence of P.Ws. 1 and 3 is totally silent about their presence. So, the learned Public prosecutor fairly conceded that there is no case against A-2 and A-3 who are respondents 2 and 3 herein, but he argued that there is sufficient evidence to establish the guilt of A-1 for offence u/s 302 I.P.C.
59. From what has been stated above, it is clear that not only there is inconsistency in the evidence of P.Ws. 1 and 3 but their evidence is at variance with the earliest version as contained in Ex. P. 1 the record of investigation and commital order. On considering this evidence, the learned Sessions Judge found that the prosecution has not established the guilt of the accused beyond reasonable doubt and consequently acquitted them. It is against that order of acquittal, the State has preferred this appeal.
60. This appeal came up for hearing before the Division Bench comprising M. N. Rao and B. K. Somasekhara, JJ. They were divided in their opinion. Hence, the appeal was laid before me along with their opinions u/s 392 Cr.P.C. Where a case is referred to a third Judge under Section-392 Cr.P.C., it is his duty not merely to weigh the differred opinions, but to examine the whole evidence himself with a view to deliver the final judgment. It should be remembered that this is an appeal filed under Section-378(1) Cr.P.C. It has been held that in an appeal against acquittal, the High Court has full power to review the entire evidence upon which the order of acquittal was founded and then come to its own conclusion. But, in exercising the power conferred on the Court and before reaching its conclusion upon facts, the High Court should always give proper weight and consideration to the view taken by the trial judge as to the credibility of the witnesses and the fact that the presumption of innocence in favour of the accused is further reinforced by the order of acquittal and the right of the accused to the benefit of doubt. It is a well settled principle that unless the findings of the trial Court are unreasonable and perverse, the High Court should not normally interfere with the order of acquittal. So bearing these principles in mind. I have to consider whether this is a case where interference with the order of acquittal is warranted. It is true that the learned Sessions Judge had dealt with the case in slipshod manner and had not considered the evidence in detail. The entire discussion consists of only two pages and he as not adverted to the evidence specifically with regard to the incident. Apart from that, he had not bestowed any attention even at the time of framing of charges. The accusation against the respondents was that A-1 attacked the deceased on the instigation of A-2 and A-3. So a specific charge u/s 302, should have been framed against A-1 and a charge for abetting the commission of offence against A-2 and A3. From the charge-sheet and the record of investigation, it is clear that A-1 had attacked P.W. 3 and caused grievous hurt to him. But no charge was framed against A-1 for causing hurt to P.W. 3. Atleast after the evidenced, the learned trial judge should have realised that there is no charge against A-1 for causing hurt to P.W. 3 and should have rectified the same.
61. So, I now proceed to consider whether the evidence on record establishes the guilt of A-1 for the offence u/s 302 I.P.C. beyond all reasonable doubt.
62. For deciding the above point, we have to scrutinise the evidence of P.Ws. 1 and 3 who are said to be the eye-witnesses to the incident. P.W. 1 has stated that while the deceased and P.W. 3 were going for purchasing beedies to the shop situated near the hotel of A-3, A-1 who was sitting on a cart got down and attacked the deceased with a knife thrice on the chest and when P.W. 3 interfered, A-1 stabbed P.W. 3 also. P.W. 1 further deposed that in the meanwhile, the deceased snatched a car-page presumably to attack A-1. But being unable to move, he fell down. Thereafter, according to P.W. 1, A-1 stabbed the deceased again on the left side of the chest, left leg and on the left hand and then took the cart-peg and pierced it into the mouth of the deceased. After thus attacking the deceased, A-1 is said to have left the place.
63. P.W. 3 had deposed that while they were going to the shop, A-1 questioned the deceased as to why he has been harassing his concubine and on account of that there was some quarrel and during that quarrel, the deceased pulled out a cart-peg beat A-1 and then A-1 stabbed the deceased thrice with a knife on the left upper arm and left leg. He further stated that when he tried to interfere, A-1 stabbed him on the left side of the chest and ran away from the scene of offence, thus, there is any amount of inconsistency in the evidence of P.Ws. 1 and 3 with regard to the overtacts attributed to the accused. According to the evidence of P.W. 3, the incident started with the attack of the deceased on A-1. But, P.W. 1 does not speak about it. Further, P.W. 1 has stated that the deceased was stabbed on the chest thrice before he fell down and it is only after he had fallen down that A-1 stabbed on the left leg and left hand. So, there is irreconcilable inconsistency in the evidence of P.Ws. 1 and 3 with regard to the incident.
64. According to the evidence of P.Ws. 1 and 3, A-1 had attacked the deceased and P.W. 3 with one and the same knife. But, the evidence of the Medical Officer, P.W. 4, who conducted post-mortem examination deposed that the injuries found on the deceased could not have been caused by a double edged weapon whereas P.W. 5, who examined P.W. 3 and issued wound certificate had deposed that the injury found on P.W. 3 must have been caused by a double edged weapon as the edges of the injury were clean cut. So, this circumstance renders it doubtful whether the incident has taken place in the manner as alleged by the prosecution. Apart from that, the evidence shows that the deceased had consumed arrack in the shop of one Obulesu just few minutes prior to the incident. But the stomach contents did not disclose as the deceased having consumed arrack. Alcoholic odour should have been there inasmuch as putrefaction had not set in by the time of post-mortem examination. But, the post mortem certificate says that there was no particular smell of stomach contents. This circumstance renders it doubtful whether the deceased had consumed any arrack before the incident as alleged by the prosecution. That in turn improbablises P.Ws. 1 and 3 being in the company of the deceased at the time of the incident. Apart from that there are strong circumstances to suspect whether P.W. 1 was the author of Ex. P-1. In his evidence, P.W. 1 had deposed as follows :
"we got admitted Ramachandra (P.W. 3) in a Government Hospital and police came and recorded his statement."
Thus, P.W. 1 did not state himself as having given a report to the police. On the other hand, it reads as if the Police recorded the statement of the deceased. During trial P.W. 1 stated that he belongs to Yerradoddi village which is at a distance of 4 miles from Kummaravandlapalle and that he went to Kummaravandlapalle on the date of the offence at 4 p.m. But the report Ex. P-1 alleged to have been given by P.W. 1 contains the following recitals.
"My native village is Kummaravandlapalle.. I am living by weaving baskets. We are residing in our house situated at a place in the quarters where the deceased Erikala Marreppa''s house is situated."
Erikala Marreppa was resident of Kummaravandlapalle. So, it is difficult to expect that P.W. 1 who is a resident of Yerradoddi would have given a report containing the recitals referred to above. Apart from that, P.W. 3 has stated that he was taken to the hospital by P.W. 2 and Vengamma. He did not say as P.W. 1 have accompanied him to the hospital. So, it is doubtful whether P.W. 7, the Head-constable, could have recorded the statement of P.W. 1. Even the wound certificate of P.W. 3 shows that P.W. 3 was taken to the hospital by P.W. 2. Apart from that, the evidence of P.W. 1 is at variance in all material aspects with the version given in Ex. P-1. So, it is very much doubtful whether P.W. 1 was the author of Ex. P-1.
65. The evidence on record clearly shows that there are number of residential houses near about the scene of offence and that the scene of offence is a busy locality. But unfortunately no independent evidence is brought on record. P.Ws. 1 and 3 are admittedly close relatives of the deceased. The incident took place in the evening at about 5 p.m. so, under these circumstances, some of the people of the locality should have witnessed the incident but no independent witness is examined. It is true that the trial Court hs not adverted to all these aspects while disposing of the case and acquitting the accused. But, however, that will not stand in the way of the appellate Court in reappraising the entire evidence. So, in view of the above discussions, I find that the evidence of P.Ws. 1 and 3 does not inspire any confidence and that it would be unsafe to base a conviction on such evidence. I am therefore, of opinion that the appeal is liable to be dismissed.
66. In accordance with the opinion expressed by the third Judge, the Criminal Appeal is dismissed.
67. Appeal dismissed.
