Andhra Pradesh High Court - Amravati
The State Of A.P. Rep., By Its Pp vs Sreevysashava Rajesh Raju on 8 December, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.287 of 2015
JUDGMENT:- (Per Hon'ble Sri Justice C. Praveen Kumar) Challenging the order of acquittal, dated 23.08.2011, passed in Sessions Case No.606 of 2009 on the file of the learned Principal Sessions Judge, Kurnool, the State preferred the present Criminal Appeal under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973.
2. The sole accused was tried for the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 (for short, "I.P.C.") on an allegation that on 18.03.2008, the accused had sexual intercourse with one Ediga Kalavathi (hereinafter, referred to as "the deceased") with an ulterior motive and while she was on the floor, he picked up a stone available beside him and hit on her face causing instantaneous death.
3. The facts of the case are that the accused, who was a T.V. Mechanic, used to sell T.Vs with the partnership of the deceased, who used to provide financial assistance to the accused, as and when required. It is said that the accused developed illicit intimacy with the deceased and used to visit her house now and then to satisfy his sexual lust. The accused is 2 said to have taken a loan of Rs.40,000/- by executing a promissory note. The accused developed suspicion over the deceased, as having developed illegal contacts with other men. While so, on 18.03.2008, the deceased telephoned to the accused and informed him that she is coming to C.Belagal Village. Both of them met in the T.V. shop of the accused and from there, they claim to have proceeded to a bridge in the village where he caused the death of the deceased by hitting her with a stone on her face and head. The accused left the village and took shelter in Adoni and Yemmiganur. It is said that on 20.03.2008, P.W.4 went to the hillocks to break coconut at the tomb of his father-in-law and while returning, on the way, he observed the dead body in the bushes. He claims to have informed P.Ws.2 and 3 about the same. Thereafter, law was set into motion by P.W.2, by lodging a report under Ex.P-1. After registering the crime, P.Ws.1 to 4 proceeded to the place where the dead body was noticed and there, a panchanama of the scene was prepared under Ex.P-3. After completing the inquest proceedings, the body was sent for post mortem examination and thereafter, a charge sheet came to be filed, which was taken on file as P.R.C.No.96 of 2009 on the file of the learned Judicial Magistrate of First Class, Kurnool.
3
4. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the case is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Principal Sessions Judge, Kurnool, for trial and disposal in accordance with law.
5. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried.
6. To substantiate its case, the prosecution examined P.Ws.1 to 28 and got marked Exs.P-1 to P-36 and M.Os.1 to 13.
7. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. However, he did not adduce any oral evidence except marking Ex.D-1 in support of his plea. Since the prosecution failed to prove the evidence of P.W.28 and the extra-judicial confession made by the accused, the learned Sessions Judge acquitted the accused. Challenging the same, the present appeal came to be filed by the State.
4
8. It is to be noted here that this is an appeal against acquittal filed by the State. The scope of interference in an appeal against acquittal was dealt with by the Hon'ble Supreme Court in Jaswant Singh v. State of Haryana1, wherein the Apex Court observed as under:-
"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 . The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat MANU/SC/0504/1996 : 1996CriLJ2867 : While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
9. In Ghurey Lal vs State Of U.P2, while referring to the case of Sheo Swarup v. King Empero3, the Hon'ble Apex Court discussed the ambit and scope of the powers of the appellate 1 AIR 2000 SC 1833 2 Criminal Appeal No.155 Of 2006 3 (1934) 36 Bomlr 1185 5 Court in dealing with an appeal against acquittal and observed as under: (at p. 230):
"..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.."
The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill- founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
46. This Court again in the case of Surajpal Singh & Others v. State4, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:
4
AIR 1952 SC 52 6 "It is well established that in an appeal under S. 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
47. This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.
48. In Tulsiram Kanu v. The State5, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.
49. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh6, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of 5 AIR 1954 SC 1 6 AIR 1954 SC 637 7 various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision.
50. The same principle has been followed in Atley v. State of U.P.7 (at pp. 809-10 para 5), wherein the Court said:
"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."
51. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra8. Bose, J. expressing the majority view observed (at p.220):
"It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab9, (at pp.77-78); and if the trial Court takes 7 AIR 1955 SC 807 8 AIR 1956 SC 217 9 AIR 1953 SC 76 8 a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really strong reasons for reversing that view. Surajpal Singh v. State10 at 54."
52. In Balbir Singh v. State of Punjab11, this Court again had an occasion to examine the same proposition of law. The Court (at page 222) observed as under:
"It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."
Keeping in view the principle laid down in the judgment referred to above, we shall proceed to deal with the matter.
10. Learned Public Prosecutor took us through the evidence on record in support of his plea viz., that the circumstances relied upon by the prosecution are proved beyond all reasonable doubt. P.W.28 - Mandal Revenue Inspector, Taluk Office, C.Belagal Village, in his evidence, states that on 30.04.2008, the accused approached him and made a confession about the 10 AIR 1952 SC 52 11 AIR 1957 SC 216 9 commission of the offence and asked him to surrender before the police. The confession was reduced into writing under Ex.P-36 and thereafter, P.W.28 is said to have taken the accused along with his confession statement to the police station.
11. But as seen from the record, there are many inconsistencies in the alleged extra-judicial confession made by the accused before P.W.28.
12. A perusal of the evidence on record shows that as per M.Os.11 to 13, an amount of Rs.40,000/- was borrowed by the accused whereas the evidence of P.W.28 is to the effect that the accused claims to have borrowed Rs.45,000/- from the deceased. Further, as per Ex.P-36, the deceased was killed on 18.03.2008. The recovery of M.O.3 was at the instance of the accused in pursuance of Ex.P-9 from underneath Kadagamma bridge, which shows that in terms of Exs.P-9 and P-29, the accused lead P.Ws.18, 22 and 27 from the police station to Kadagamma bridge where the accused went underneath the said bridge, picked up M.O.3 - rexin bag from under a stone and handed it over the same to the police, which was seized under Ex.P-8 panchanama. M.O.3, which contains M.Os.5 to 13, was seized in the presence of P.Ws.18 and 22 at the instance of the accused in pursuance of Exs.P-9 and P-29 on 30.04.2008. 10 There was a time gap of 42 days which made the trial Court to hold that it is unbelievable that for such a long time i.e., for 42 days, M.O.3, which contains M.Os.5 to 13, would be under the said bridge, which is an open place, more particularly, without spoiling M.Os.11 to 13 (promissory notes).
13. Apart from that, one another reason given for disbelieving the extra-judicial confession was that P.W.28 is a stranger to the accused. The accused would not have made extra-judicial confession before him. In the absence of any other corroborative material to the contents of the extra-judicial confession, the learned Sessions Judge disbelieved the same and acquitted the accused.
14. Further, during cross examination, P.W.27 - Investigating Officer clearly stated that he did not obtain the phone number of the accused or the details of the calls through the S.T.D. coin boxes. P.W.28 stated that he did not obtain any certificate from the office of Bharath Sanchar Nigam Limited for allotment of cell phone number 9441306065 to the accused. In Ex.P-24 or in Exs.P-25 to P-28, the name of the owner of the cell phone is not mentioned. The prosecution did not adduce any convincing evidence to establish that the accused is the owner and user of cell phone number 9441306065. Even from the evidence of 11 P.W.27, it is clear that he did not obtain a certificate from B.S.N.L. for allotment of the cell phone to the accused and that he was using it. There is no other corroborative evidence to show that P.Ws.9 to 11, 14, 16 and 20 are the registered owners of the S.T.D. coin boxes. P.W.27 did not try to make an attempt to get the subscription forms and the documents pertaining to the S.T.D. coin boxes. There is no evidence on record to establish that P.Ws.9 to 11, 14, 16 and 20 are the coin box owners and the subscribers of the cell phone in question. Even the SIM card of the said cell phone was not seized or marked. Hence, the prosecution failed to establish that prior to the death of the deceased, she made a call to the accused and the accused also made calls to her.
15. The First Information Report - Ex.P-14 is also silent with regard to the identity of the dead body of the deceased. It was specifically noted as an unidentified dead body killed by an unknown person. Hence, there is no convincing evidence to connect the accused with the commission of offence. Accordingly, the prosecution failed to prove the motive for the offence and absolutely, there is no evidence on record to show that the dead body of the deceased was that of the deceased Kalavathi and that the accused intentionally killed her due to financial transactions.
12
16. Having regard to the above findings, we see no grounds to interfere with the impugned judgment and the appeal is liable to be dismissed.
17. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 23.08.2011, passed in Sessions Case No.606 of 2009 on the file of the learned Principal Sessions Judge, Kurnool.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date : 08.12.2022 AMD 13 137 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.287 of 2015 Date : 08.12.2022 AMD