Crl. R.C. No. 1329 of 1999
R.M. Bapat, J.
1. This Criminal revision case is filed by the de facto complainant in S.C. No. 331 of 1996 against the order of acquittal dated 27.7.1999 recorded by II Additional Sessions Judge, Cuddapah. Since, Criminal Appeal No. 174 of 2000 is also filed by the State of Andhra Pradesh against the same order, in our considered opinion, the Criminal R.C. No. 1329 of 1999 does not survive. Accordingly, it is dismissed.
Criminal Appeal No. 174 of 2000
R.M. Bapat, J.
2. This appeal is filed by the State of Andhra Pradesh represented by the Public Prosecutor aggrieved by the order of acquittal recorded by the learned IInd Additional Sessions Judge, Cuddapah in Sessions Case No. 331 of 1996 acquitting the accused 1 to 7 of all the charges.
3. The prosecution has framed, in all, 7 charges against the accused-respondents herein. The first charge was under Section 148 IPC against A-1 to A7. The Second Charge was under Section 302 IPC against A-1 to A-7. The third charge was under Section 307 IPC against A-1 to A-7 for attempting to murder P.W.1. The fourth charge was under Section 326 IPC against A-1 to A-7 for causing grievous hurt to PWs.2 to 5. The fifth charge was under Section 427 IPC against A-1 to A-7. The sixth charge was under Section 3 of the Explosive Substances Act against A-1 to A7 and the seventh charge was under Section 5 of the Explosive Substances Act against A-1 to A-7.
4. The story of prosecution can be briefly stated as follows. The incident in question took place on 15.1.1994 at about 12.30 noon on the Main Road of Pulivendula town. According to the prosecution, one Shaik Tappal Khasim Saheb died because of the bomb explosion. It is alleged by the prosecution that there were two factions in the village of Kasnoor of Simhadripuram Mandal, one headed by A-1 and the other by P.W.1. There were cases and counter cases against each party and each group was waiting for an opportunity to take revenge against the other group. While so, on 15.1.1994, PW.1 along with his wife P.W.3, son P.W.4, friend P.W.2, Shaik Tappal Khasim Saheb (the deceased) and the daughter of Shaik Tappal Khasim Saheb P.W.5 went to Pulivendula in the jeep bearing Registration No. 28 B 6057. After consulting a doctor and after making some purchases in the town of Pulivendula, they were about to come back to their village. On the way, at Pulivendula main Road, P.W.1 stopped his jeep near a flower and fruit market so as to purchase some flowers and fruits. Then, suddenly, A-1 to A-7 came in front of the jeep raising cries 'CHAMPEYANDIRA NA KODUKUNI' surrounded the jeep and hurled bombs. Some of the bombs exploded on the windscreen of the jeep injuring all the inmates of the jeep. P.W.1, thereafter, started the jeep and took all the injured to Pulivendula Government Hospital. Shaik Tappal Khasim Saheb received grievous injuries in the said incident and his left hand was severed. P.Ws.1 to 4 were also received injuries in the said incident. On reaching the hospital P.W.17 the doctor started treatment on the injured Shaik Tappal Khasim Saheb. Meanwhile P.W.18, Inspector of Police who received vague information that there was explosion of bombs in main bazaar, Pulivendula town, reached the hospital and recorded Ex.P.1 from P.W.1 as the injured Shaik Tappal Khasim Saheb was not in a position to speak. While the recording of Ex.P1 was half way through, the said Shaik Tappal Khasim Saheb died. P.W.17 informed the same to the Inspector of Police under Ex.P-16, the death intimation. P.W.18 after completing recording of Ex.P1, went to police station, registered the case on the basis of Ex.P.1, the statement of P.W.1. He prepared express F.I.Rs and dispatched them to all the concerned. Ex.P.17 is the relevant F.I.R. He went back to the hospital and seized the jeep and M.Os.14, 15, 18 to 22 under a Panchanama in the presence of P.Ws.13 and 14. Ex.P.3 is the said Panchanama. He also seized M.Os.11 to 17, clothes of the injured. He has conducted inquest from 4 P.M. to 7 P.M. in the presence of P.W.13 and others. Ex.P.13 is the inquest report. Thereafter, the dead body was sent to Post Mortem Examination. P.W.17, the doctor conducted Post Mortem Examination on the dead body of the deceased. Ex.P.6 is the Post Mortem Certificate. As per the doctor's report, the deceased died due to shock and haemorrhage on account of the bomb explosion. P.W.17 also examined P.W.1 and found 7 external injuries on his person. Ex.P.7 is the wound certificate issued in that connection. Out of the 7 injuries, injury Nos.2 and 7 were grievous in nature and other injuries were simple. P.W.17 also examined P.W.2 on the same day. He found 3 external injuries on the person of P.W.2 which were all simple in nature. Ex.P.9 is the Wound Certificate issued in that connection. He also examined P.W-3 and found 7 external injuries on her person, out of which injury No. 2 was grievous and other injuries were simple in nature. Ex.P.11 is the Wound Certificate issued in that connection. He also examined P.W.4 on the same day and found 3 external injuries on his person. All of them were simple in nature. Ex.P-13 is the Wound Certificate issued in that connection. Thereafter, P.W.18 continued further investigation. He visited the scene of occurrence and conducted Panchanama of scene of offence under Ex.P-4 in the presence of P.W.14 and others. Ex.P.8 is the rough sketch prepared by him. At the scene of offence he seized Material Objects M.Os.26 to 28. He examined P.Ws.6 to 12 at the scene of offence and recorded their statements. He arrested A-1, A-3, A-5 to A-7 at Kothapalli Bus Stand on 27.1.1994. A-2 and A-4 pleaded alibi, but as per Investigation Officer, the plea of alibi of A-2 and A-4 is false.
5. On receipt of the sanction orders to prosecute the accused under the Explosive Substances Act on 10.11.1994 and on receipt of the Forensic Science Laboratory Reports Exs.P.21 and 22, P.W.18 has filed the charge sheet.
6. The learned II Additional Sessions Judge, Cuddapah, however, on trial, after taking into consideration the entire oral and documentary evidence brought on record, acquitted the accused A-1 to A-7 of all the charges. Hence the appeal by the State.
7. The defence of the accused is one of total denial and it is also suggested that because of factions in the village they have been falsely implicated. It is seen from the evidence on record that prosecution Examined P.Ws.1 to 18 and marked documents Exs.1 to 24 and also produced Material Objects M.Os.1 to M.O.28. The defence examined D.W.1 and marked D1 to D.11, certain contradictions pointed out from the material placed on record by the prosecution.
8. The Doctor opined that all the injuries were ante mortem in nature and the deceased would have died because of shock and haemorrhage due to bomb blast within 16 to 20 hours prior to post mortem examination and as per his observations he issued the post mortem certificate Ex.P6.
9. Considering the evidence led by the prosecution on the point of homicidal death, we hold that the deceased did die a homicidal death.
10. In order to bring home the guilt of the accused and also to prove that the deceased died homicidal death, the prosecution mainly relied upon the evidence of the eye witnesses and also the evidence of P.W.18, Inspector of Police who had conducted the investigation. The prosecution also relied upon the evidence of P.W.13 who had acted as inquest Panch. Ex.P.3 is the Inquest Report. The prosecution further relied upon the evidence of P.W.17 who conducted autopsy over the dead body of the deceased and noticed the following external injuries:
1. An irregular lacerated injury involving the left shoulder, left axilla, back of upper and middle of left chest, and infra-axillary area of left side of chest up to the middle with lacerations of skin, subcutaneous tissues and muscles irregularly lacerated with upper arm bone fractured at its upper part near the shoulder joint thereby the whole of left upper limb is loosely hanging by a part of skin and small muscle pieces on its front aspect.
2. The muscles over the chest on back and side of chest i.e., infra-axillary area shows irregular lacerations of skin, sub-cutaneous tissues and muscles thereby the ribs are exposed here and there on back and side of left chest. The inter costal muscles over left side of chest showed lacerated injuries. Two metal pieces recovered from the shoulder region and side of chest region are preserved to be sent for chemical analysis. The skin, muscles and soft tissues show burnt and blackening which are not washable with water over the shoulder and left chest region.
3. Left side of the face and neck shows burnt and blackening with singing of scalp hair here and there which is not washable with water.
11. On internal examination of the dead body of Shaik Tappal Khasim Saheb, P.W.17 found the following internal injuries.
12. On opening of the chest the left side cavity contains 1500 CC of blood and blood clots. There is fracture of left side ribs of 2,3,4,5,6,7,8 ribs in the infra axillary area with irregular lacerations of intercostal muscles with burnt and blackening of the tissues which are not washable with water. The left lung shows irregular lacerated injuries over the middle portion with blackening here and there. Metal piece is recovered from the lung substance, which is preserved for chemical analysis. Right lung was normal. Abdomen contains 5 ounces of semi-digested food 'rice'. Liver, Spleen, Kidneys were normal and pale on cut section. Bladder is empty. Rectum is empty.
Head:- Skull bones intact. Brain and membranes are normal and pale on cut section. The doctor opined that all the injuries were ante mortem in nature. He further opined that the deceased appear to have died of shock and haemorrhage due to bomb blast 16 to 20 hours prior to Post Mortem Examination.
13. Out of the eye witnesses and others examined by the prosecution, P.W.1 happened to be the de facto complainant. He is also an eyewitness to the incident and he is the person who actually set the criminal law into motion by giving the Report Ex.P.1. P.W.2 is an injured eyewitness. P.W.3 is also an injured eyewitness who is the wife of P.W.1. P.W.4 happened to be the son of P.W.1. P.W.5 is the daughter of the deceased. She is also an eyewitness to the occurrence. P.Ws.6 to 11 were the shopkeepers having the shops in the vicinity at the scene of offence. P.W.12 is a cloth merchant running a shop in the name and style 'Priyadarshin Saree Centre'. The said witness was examined by the prosecution in order to establish the presence of accused at the scene of offence. According to his version PWs.1 to 5 had visited his shop for making cloth purchases. P.W.13 is the Panch witness who had attested Ex.P.2, the Seizure Panchanama by which Mos.1 to 22 were seized. Ex.P.3 is the inquest panchanama regarding blood stained clothes Mos.23 to 25 viz., full shirt, cotton lungi, underwear respectively found on the dead body of the deceased which was also attested by P.W.13. P.W.14 is the Panch witness who had attested Ex.P.2 and also Ex.P.4 which is the observation report. The evidence of P.W.15 is not of much relevance. P.W.16 was examined in order to prove the factum of obtaining sanction for prosecuting the accused under Section 3 and 5 of the Explosive Substances Act. P.W.17 is a Doctor who had conducted the post mortem examination on the dead body of the deceased and also examined the injured witnesses P.Ws.1 to 5. P.W.18 is the investigation officer.
14. We may now endeavour to scrutinize the evidence of the eyewitnesses P.Ws.1 to 5 brought on record by the prosecution so as to determine whether their evidence is substantial to bring home the guilt of the accused. As stated earlier P.W.1 is a complainant who had filed Ex.P.1 and set the criminal law into motion. According to his version, the accused 1 to 7 surrounded the jeep and each one of them was carrying a bomb in his hand and all the bombs were hurled at the jeep in resulting the death of the deceased. One bomb hit his left hand and it was severed from the body and was hanging on the skin. Thus according to the prosecution, the accused 1 to 7 were responsible for causing the death of the deceased and also responsible for causing injuries sustained by the prosecution witnesses. P.W.3 is also claimed to be an eyewitness to the occurrence according to the prosecution who had accompanied the deceased Shaik Tappal Khasim Saheb and other prosecution witnesses in the jeep on the day of occurrence. She has stated that she went along with them for the purpose of getting medical check up of P.W.5 at Pulivendula town. According to the version of P.W.2 accused Nos.1, 3, 5, 6, 7 and two or three other persons had surrounded the jeep and the above persons had hurled the bombs causing death of the said Shaik Tappal Khasim Saheb. Thus the prosecution claims that P.W.2 is the eyewitness to the occurrence. P.W.3, who happened to be the wife of the P.W.1 involves accused Nos.1, 3, 5 and 7 and three more persons as to have hurled the bombs causing the death of the said Shaik Tappal Khasim Saheb. As far as P.W.4 is concerned, he involves all the accused 1 to 7 as responsible for hurling the bombs to cause the death of the deceased Shaik Tappal Khasim Saheb whereas P.W.5 involves accused No. 1 alone. She was not able to identify the other persons. According to her testimony, 7 members had surrounded the jeep on the day of occurrence having bombs in their hands and that accused No. 1 was there among the seven members and that she could not identify the other persons.
15. As already stated earlier, the defence examined D.W.1, who happened to be the Superintendent of Sub-jail Nandikotkur. The defence examined the said witness in order to show that accused Nos.2 and 4 were in jail during the period between 20.12.1993 and 21.1.1994 at Koilakuntla and he has been able to help the court with the concrete evidence that accused Nos.2 and 4 were in the judicial custody in connection with a different offence.
16. Mr. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the accused-respondents herein submitted at the Bar that when it stands established that accused Nos.2 and 4 were in jail on the date when the incident took place viz., 15.1.1994, their participation in the commission of the offence is utter falsehood as alleged by the prosecution. This Court is in total agreement with this argument.
17. The learned Public Prosecutor, however, vehemently submits that even for the sake of argument it is accepted that accused Nos.2 and 4 were inside the jail, then in that event, there is no compelling need to throw away the entire case of the prosecution on that basis. She also submits that the trial Court ought have proceeded against the other accused whose guilt has been firmly established by the evidence of eyewitnesses P.Ws.1 to 5 and recorded a conviction. She, therefore, pleads that this Court may convert the acquittal recorded against the accused other than A2 and A4 into a conviction. According to the learned Public Prosecutor, such an exercise is permissible under the law. In support of her contention, the learned counsel relied on the ruling reported in KRISHNA MOCHI v. STATE OF BIHAR, 1.2002 SCC [Criminal] 1220 and invited our attention to paragraph 51 of the said ruling which reads as under:
'51.Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, prayer is to apply the principle of falsus in uno, falsus in omnibus. This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory role of evidence.' (See Nisar Ali v. State of U.P. : 1957CriLJ550 ). Merely because some of the accused persons have been acquitted, though evidence against all the them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh v. State of Punjab : 1956CriLJ827 ). The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. : 1972CriLJ1302 and Ugar Ahir v. State of Bihar : AIR1965SC277 . An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. : AIR1954SC15 ) and Balaka Singh v. State of Punjab : 1975CriLJ1734 . As observed by this Court in State of Rajasthan v. Kalki : 1981CriLJ1012 normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those, which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against the accused-appellants in the case at hand.'
18. The learned Public Prosecutor, also relied upon another Ruling reported in ANNAPORNA DUTT v. STATE OF U.P., 2.1993 CRL.L.J.490 in support of her contention and invited our attention to paragraph 6 of the said Ruling which reads as under:
'6.After considering the facts and circumstances of the case and the submissions made by the learned counsels for the parties, we do not find any reason to take a view contrary to the view taken by the High Court. In justification of the findings made by the High Court, cogent reasons have been indicated. It also appears to us that all the contentions raised in the appeal were considered in the proper perspective and we have no hesitation in accepting the findings made by the High Court. In the facts of the case, the High Court was justified in holding that although there was some overdoing on the part of the prosecution in falsely implicating some of the accused persons, the evidences of eye witnesses so far as the complicity of the appellants is concerned appeared to be convicting(convincing) and were not required to be discarded. Such evidences also get support from the injuries suffered by the deceased and by some of the eyewitnesses for the prosecution The existence of a dispute over landed property appears to be the cause for bad relations between the parties but simply because there is a dispute in respect of a landed property, the prosecution story is not required to be discarded outright on the footing that the witnesses for the prosecution were all partisan witnesses and had deposed falsely to implicate the accused persons. It appears to us that the High Court has taken into consideration the facts and circumstances of the case quite dispassionately and has given the benefit of doubt to the accused Devi Dutt because of the contradiction relating his complicity. In our view, the High Court has taken a very reasonable view in holding that, despite the death of Babulal, the accused had no intention to cause murder of the said Babulal or any other injured persons but they had intended to assault them. Precisely for the said reason, the conviction and sentences passed by the learned Sessions Judge have been modified by the High Court and in the matter of sentences passed against the appellant, a very considerate view has been taken by the High Court. Accordingly we do not find any reason to interfere with the conviction and orders of sentences passed against the appellants. The appeal, therefore, fails and is dismissed. The appellants were granted bail by this court. The said bail bonds, therefore, stands cancelled and the appellants are directed to serve out the sentences.'
19. Drawing support with these two Rulings, it is submitted by the learned Public Prosecutor, that even if the name of accused Nos.2 and 4 is deleted from the charge-sheet, as they were in the judicial custody, the other accused are liable to be punished for the offences with which they were charged.
20. While rebutting the contentions of the learned Public Prosecutor, Mr. Padmanabha Reddy, learned Senior Counsel invited our attention to the Ruling reported in MALEMPATI PATTABI NARENDRA v. GHATTAMNENI MARUTHI PRASAD, 3. : 2000CriLJ3449 especially paragraphs 11 and 12 therein, which read as under:
11.Though to be interned in jail is a misfortune, it became a blessing to A-4. If he was not then in jail, what would have been the disastrous consequences for him. We have no doubt that PW-1 would certainly have struck to his version regarding A-4's role in the same manner as he gave in his written complaint. If the Court had believed PW-1, in that situation A-4 would have been convicted of the offence under Section 302 IPC. Now we have no manner of doubt that PW-2's present version, that he identified an assailant having close resemblance with A-4 is nothing but a canard concocted for the purpose of escaping from the charge of a rank perjury.
12. In this context, it must also be borne in mind that A-1, A-2 and A-3 are the children of A-4. If the father could have been falsely implicated in the murder of the deceased, why not the children also be arrayed with the same angle. Hence, the possibility of false implication of A-1, A-2 and A-3 cannot be lightly glossed over. So, we must seriously consider whether PW-1 witnessed the occurrence at all or he would have reached the place of occurrence only after hearing about his father's mishap.'
21. We may now scrutinize the entire case on hand with reference to the evidence available on record and also taking into consideration the guidelines framed by the Supreme Court in this regard so as to determine whether the trial court is correct in recording an acquittal. As stated earlier, the version of Prosecution Witnesses PWs.1 to 5 is not consistent. While P.W.1 and P.W.4 involved all the accused viz., A-1 to A-7 as to have participated in the commission of offence, P.W.2 involves A1, A-3, A-5, A6 and A7 excepting A2 whereas P.W.3 involves A-1, A-3, A-5 and A-7 and P.W.5 involves accused No. 1 alone. Under these circumstances, the mathematical calculations cannot be drawn to find out who has the common factor in the commission of the crime. Such type of conclusion would be highly dangerous and, therefore, we are of the considered view that it is very difficult to draw the line as to who had participated in the commission of offence especially having regard to the exaggerated version given by the prosecution witnesses. Once the element of falsehood entered into the prosecution story, then there is no end in multiplying the falsity. The learned senior counsel Mr. Padmanabha Reddy invited our attention to the evidence of the Investigation Officer who has specifically stated that no marks of explosion was found on the road. The said admission of the investigation officer was also taken into consideration by the trial court while acquitting the accused of all the charges. The Trial Court also considered the evidence brought on record by the defence which has positively established that accused Nos.2 and 4 were in the sub-jail at the relevant time in the judicial remand.
22. It is well established principle of law that when acquittal has to be converted into conviction, Courts have to avoid hasty decisions and great amount of care has to be bestowed, otherwise the results are catastrophic. It would be a highly dangerous proposition if we try to convert an acquittal into a conviction when we have come to the conclusion that the prosecution witnesses are trying to create some false stories with the background that admittedly there are two factions in the village and the members of one faction would always be eagerly waiting for the opportunity to take revenge on the members of the other faction.
23. In the facts and circumstances noted by us above, it will not be possible for us to convert the acquittal recorded by the trial court into conviction. Under these circumstances, considering the above facts on record, we are of the firm opinion that the appeal filed by the State is devoid of merits. It is accordingly dismissed. The bail bonds, if any, of both the accused and their sureties are ordered to be cancelled.