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2009(1) Supreme 67
SUPREME COURT OF INDIA
(From Andhra Pradesh High court)
Dr. Arijit Pasayat, V.S. Sirpurkar and G.S. Singhvi, JJ.
Batcu Venkateshwarlu and Ors. — Appellant
versus
Public Prosecutor High Court of A.P. — Respondent
Criminal Appeal No. 1159 of 2001
Decided on : 01-12-2008
(b) Code of Criminal Procedure, 1973 – Section 378 – Both questions of fact and of law are open to determination by High Court in an appeal against an order of acquittal – However, in case of acquittal, there is a double presumption in favour of the accused – There must be substantial and compelling reasons for holding that the trial court was wrong. (Paras 11, 12, 25)
(1934) 61 IA 398; AIR 1945 PC 151; AIR 1954 SC 36; (1952) SCR 193; (1953) SCR 418; AIR 1955 SC 807; (1955) 2 SCR 1285; (1961) 3 SCR 120; (1963) 2 SCR 405; (1973)2 SCC 793 – Relied upon.
(c) Code of Criminal {Procedure, 1973 – Section – 378 – While interfering with order of acquittal emphasis must be placed on balance between importance of individual liberty and evil of acquitting guilty persons must be emphasised. (Para 29)
(1973) 2 SCC 793; (1979) 1 SCC 355; (1996) 9 SCC 225; (2002) 3 SCC 57; (2002) 4 SCC 85; (2002)6 SCC 470; (2003) 12 SCC 606; (2006) 10 SCC 313 – Relied upon.
(d) Code of Criminal {Procedure, 1973 – Section 378 – General principles regarding powers of appellate court while dealing with an appeal from acquittal culled. (Para 37)
(e) Words and Phrases – ‘Proof’ and ‘Doubt’ – Degree of probability amounting to proof varies from case to case – A reasonable doubt is based on reason and common sense. (Paras 38 and 39)
(1988)4 SCC 302; (2003)7 SCC 56 – Relied upon.
Facts of the case :
1. There were in all three murders. There are two groups in the village. A1 is the leader of one group and one Irukupatti Abaiah is the leader of another group. There were cases and counter cases between the two groups and security proceedings were initiated against both the groups. A police picket was posted in the village to maintain law and order and peace.
2. On 14.5.1990 in the morning PW-12 was stabbed by A-11 in Harijanwada and the same was registered as Crime No.38/1990. The prosecution party retaliated by attacking a person by name A. Bharataiya and the said case was registered as Crime No.37/1990. Due to the said violence, police opened fire. Fortunately, nobody was injured due to the opening of fire, but police themselves sustained injuries as both the groups pelted stones at them. The case was registered as Crime No.36/1990.
3. While the matter stood thus, at about 12.30 p.m., A-1 along with 200 supports including all the accused mentioned in the charge sheet went to the house of PW-1 and made attacks. This is the main incident on which the trial was conducted.
4. P.W.1 belongs to the opposite group. When P.W.1 was discussing the attack made on P.W.12 in the morning by A11, A1 went to his house and exhorted the other accused to kill and beat. A1 alleged to have inflicted injuries by a spear on P.W.1 on his right thigh and on his back. D1 happened to be the son of P.W.1. He was terribly frightened on seeing the attack on his father. He ran to the upstairs of the house. Then A1 to A4 allegedly chased D1 and attacked him.
5. While A1 to A4 chased D1, the other accused chased D2 and attacked him. At about the same time, D3 was returning to his house along with his wife, PW.24. When they were nearing the house of PW.1, A18, A20, A21 and A30 to A35 attacked D3.
6. The trial Court held that prosecution failed to fasten the guilt on the accused persons. In the State’s appeal the challenge was to the judgment of acquittal, which was allowed.
Finding Of the Court :
The manner in which the High Court disposed the appeal is highly unsatisfactory.
Result : Appeal allowed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High court allowing the appeal filed by the State under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Present Code”) against the judgment of acquittal passed by learned First Additional Sessions Judge, Guntur. There is no necessity to refer to the factual aspects in detail.
2. In all, 65 persons faced trial for alleged commission of offences punishable under several sections of the Indian Penal Code, 1860 (in short ‘IPC’).
3. Prosecution version as unfolded during trial is as follows:
There were in all three murders. The names of the deceased persons were Nallappaneni Sambasiva Rao, Ch. Chinna Koteshwar Rao and Turaka pullaiah. They are hereinafter referred to as D1, D2 and D3 respectively. Out of 36 charges framed, prosecution did not examine witnesses to prove the charges No.17, 18, 23 and 24. All the accused and PWs 1 to 27 belong to Balausupadu Village within the limits of Peddakurapadu Police Station, Sattenapalli Circle, Guntur District. There are two groups in the village. A1 is the leader of one group and one Irukupatti Abaiah is the leader of another group. There were cases and counter cases between the two groups and security proceedings were initiated against both the groups. A police picket was posted in the village to maintain law and order and peace. On 14.5.1990 in the morning PW-12 was stabbed by A-11 in Harijanwada and the same was registered as Crime No.38/1990. The prosecution party retaliated by attacking a person by name A. Bharataiya and the said case was registered as Crime No.37/1990. Due to the said violence, police opened fire. Fortunately, nobody was injured due to the opening of fire, but police themselves sustained injuries as both the groups pelted stones at them. The case was registered as Crime No.36/1990. While the matter stood thus, at about 12.30 p.m., A-1 along with 200 supports including all the accused mentioned in the charge sheet went to the house of PW-1 and made attacks. This is the main incident on which the trial was conducted.
P.W.1 belongs to the opposite group. When P.W.1 was discussing the attack made on P.W.12 in the morning by A11, A1 went to his house and exhorted the other accused to kill and beat. A1 alleged to have inflicted injuries by a spear on P.W.1 on his right thigh and on his back. D1 happened to be the son of P.W.1. He was terribly frightened on seeing the attack on his father. He ran to the upstairs of the house. Then A1 to A4 allegedly chased D1 and attacked him with spears and axes. A2 held D1 tightly and A3 put a towel over the neck of D1 and pulled him down. Then A1 inflicted injuries by a spear on D1 on his right chest. A2 allegedly inflicted injuries by spear below his right thigh. A3 stabbed on the left thigh of D1 and A4 allegedly inflicted injuries by axe on the left leg of D1.
While A1 to A4 chased D1, the other accused chased D2 and attacked him in the cattle-shed of one I. Nageshwar Rao, A18 alleged to have hit D2 on the back of his head by an axe. A19 hit him on the left side of his head by a spear. A20 hit him on his back with spear and A21 hit on the back of his shoulder with spear. A22 inflicted injuries on the left side of his chest with spear. A23 speared on his right leg. A28 speared on his left leg. At about the same time, D3 was returning to his house along with his wife, PW.24. When they were nearing the house of PW.1, A18, A20, A21 and A30 to A35 attacked D3. A21 is alleged to have attacked D3 on his right forehead. A18 is alleged to have speared on his left chest. A-20 is alleged to have speared on his left ribs and A-34 is alleged to have axed on his right wrist.
It is the further case of the prosecution that A1 to A4 attacked P.W.2. P.W.3 was attacked by A31, A36 to A38. A1 to A4 attacked P.W.4 and caused simple injuries. A9, A26 and A35 attacked P.W.5, A39 attacked P
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