M. NAGESWARA REDDY versus THE STATE OF ANDHRA PRADESH AND OTHERS on 7 March 2022

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 21.02.2018 passed by the High Court ofJudicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in Criminal Appeal No. 611/2011 and Criminal AppealNo. 659/2011, by which the High Court has allowed Criminal AppealNo. 611/2011 preferred by original accused Nos. 1 to 3 (respondentNos. 2 to 4 herein in Criminal Appeal No. 72 of 2022) and has acquitted A

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Aoriginal accused Nos. 1 to 3 and by which the High Court has dismissedCriminal Appeal No. 659/2011 preferred by the original complainant –appellant in Criminal Appeal No. 73/2022, challenging the judgment andorder passed by the learned trial Court acquitting the rest of the accused,i.e., accused Nos. 4 to 11, the original complainant has preferred thepresent appeals bearing Criminal Appeal Nos. 72-73/2022.B

1.1 Against the impugned judgment and order passed by the HighCourt acquitting original accused Nos. 1 to 3, the State has also preferreda separate appeal being Criminal Appeal No. 74 of 2022.

2. As per the case of the prosecution, on 18.01.2007 at about 8:30Cp.m., all the accused formed an unlawful assembly armed with huntingsickles, came from behind the sumo vehicle and surrounded it near Dr.Kabir Clinic at Gayithri Estate, Kurnool, in which the deceasedRajasekhar Reddy and his brother M. Nageswara Reddy (PW1) andother supporters Shaik Akbar Basha (PW3), P. Sekhar (PW7) and S.Venkagamuni (PW8) were travelling, and S. Rajesh (PW6) was theDdriver. Accused Nos. 1 to 3 forcibly opened front left side door anddragged out the deceased by saying that “Ee NaqkodukulaganniNarakandir Raa” and immediately hacked him with hunting sicklesindiscriminately while Accused Nos. 8 to 11 hit the glass windows of thesumo vehicle with hunting sickles and broke the glasses. Accused Nos.E9 & 11 hacked the driver Rajesh (PW6) and he sustained bleeding injurieson his right shoulder, hand and side ribs, while Accused Nos. 4 to 7chasedPW1, PW3, PW7& PW8 and when they were fleeing injurieswere caused to PW7 and later all they fled away. The deceasedRajasekhar Reddy died on the spot whereas PW6&PW7 were taken toGovernment General Hospital, Kurnool. On the report of LW1F(Nageswara Reddy) a case being Crime No. 7 of 2007 was registeredagainst the accused for the abovesaid offences.

2.1 The investigating officer during the course of investigationrecorded the statements of the concerned persons – witnesses. He alsocollected documentary evidences including medical evidence. DuringGthe course of the investigation, the investigating officer arrested all theaccused. On conclusion of the investigation, the investigating officerfiled a chargesheet against all the eleven accused for the offences underSections147, 148, 324, 326, 307, 427 and 302 read with 149 IPC in theCourt of learned Magistrate, Kurnool. As the case was exclusively triableHby the learned Court of Sessions, the learned Magistrate committed the case to the District & Sessions Judge’s Court, Kurnool. The accusedpleaded not guilty and therefore all of them came to be tried by thelearned Sessions Court.

2.2 To bring home the charge, the prosecution examined in allseventeen witnesses and brought on record the relevant documentaryevidences through the aforesaid witnesses. According to the case of theprosecution, PW1, PW3 & PW5 were the eye witnesses to the incidentand PW6 & PW7 were the injured eye witnesses who sustained injuriesduring the incident.

2.3 As per the case of the prosecution and the eye witnesses/injured eye witnesses, all the accused persons attacked. Accused Nos.1 to 3 dragged out the deceased and hacked him with hunting sicklesindiscriminately, while Accused Nos. 8 to 11 hit the glass windows of thesumo vehicle with hunting sickles and broke the glass. Accused Nos. 9& 11 hacked the driver Rajesh, PW6and he sustained bleeding injurieson his right shoulder, hand and side ribs, while Accused Nos. 4 to 7chasedPW1, PW3, PW7 & PW8 while they were fleeing injuries were causedto PW7 and later they ran away. After closure of the prosecution sidewitnesses, the statements of the accused were recorded under Section313 Cr.P.C. The case on behalf of the accused was that of total denialand that they were falsely implicated in the case because of their politicalrivalry and past enmity. However, the accused did not adduce anyevidence in support of their defence.

2.4 On appreciation of evidence, the learned trial Court heldAccused Nos. 1 to 3 guilty of the offences punishable under Sections148 & 302 IPC and sentenced them to undergo life imprisonment for theoffence under Section 302 IPC and one year R.I. for the offence underSection 148 IPC. However, the learned trial Court acquitted AccusedNos. 4 to 11 of all the charges levelled against them.

3. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the learned trial Court, AccusedNos. 1 to 3 preferred Criminal Appeal No. 611/2011 before the HighCourt. The complainant also preferred Criminal Appeal No. 659/2011before the High Court against acquittal of the rest of the accused, i.e.,Accused Nos. 4 to 11.

3.1 By the impugned common judgment and order, the High Courthas allowed Criminal Appeal No. 611/2011 preferred by original Accused A

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ANos. 1 to 3 and has acquitted the accused of the offences punishableunder Sections 302 and 148 IPC. The High Court has dismissed CriminalAppeal No. 659/2011 preferred by the complainant, confirming theacquittal of accused Nos. 4 to 11.

4. Feeling aggrieved and dissatisfied with the impugned commonBjudgment and order acquitting Accused Nos. 1 to 3, both, the originalcomplainant as well as the State have preferred Criminal Appeal Nos.72/2022 and 74/2022. Against dismissal of the appeal preferred by thecomplainant confirming the acquittal of original accused Nos. 4 to 11,the complainant has also preferred Criminal Appeal No. 73/2022.

C5. Learned counsel appearing on behalf of the original complainantas well as the State have vehemently submitted that the impugnedjudgment and order passed by the High Court acquitting Accused Nos.1 to 3 is not sustainable.

5.1 It is submitted that in the present case, the High Court hasDerred in acquitting accused Nos. 1 to 3.

5.2 It is submitted that in the present case the High Court hasunnecessarily given weightage to the alleged interpolation in the FIRwith respect to the time of lodging the FIR. That as such the said questionwas neither raised before the learned trial Court nor any question ofEsuch alleged interpolation, if any, was put to the Investigating Officers –PW16 & PW17. It is submitted that even the High Court has specificallyobserved in the impugned judgment and order that it is true that no suchquestion on the alleged interpolation of the time was asked to theInvestigating officers – PW16 & PW17.

F5.3 It is vehemently submitted that the High Court has doubtedthe complaint/FIR given by PW1 mainly on the ground of allegedinterpolation of time of lodging the FIR and on the ground that there wasa delay of seven hours in lodging the FIR and that the FIR was sent tothe learned Magistrate at 4:30 a.m. on the next morning. It is furthersubmitted that the High Court has not properly appreciated and consideredGthe fact that the FIR was sent to the learned Magistrate within a periodof 24 hours as required under the law.

5.4 It is submitted that in the present case as per the FIR andeven as per the deposition of the Investigating Officer, the FIR waslodged at 9:30 p.m. on 18.01.2007, i.e., before he reached the policeHstation at 10:30 p.m. That the High Court has suo motu raised the said issue which was not even framed by the learned trial Court and even itwas also not the case on behalf of the accused before the learned trialCourt.

5.5 It is contended that as such in the present case the prosecutionhas proved the case against Accused Nos.1 to 3 by examining the relevantwitnesses, more particularly PW1, PW3, PW5, PW6 & PW7. That PW1& PW3 are the eye witnesses to the incident and PW6 & PW7 are theinjured eye witnesses whose testimony is consistent.

5.6 It is submitted that the High Court has disbelieved PW1 &PW3 who were the eye witnesses on some minor contradictions betweenthe two versions of PW1 & PW3. However, it is required to be notedthat those contradictions are not material contradictions which may createa doubt about the trustworthiness and credibility of PW1 & PW3.

5.7 It is further submitted that the High Court has also doubtedthe credibility and trustworthiness of PW1 & PW3 on the ground thatthey are interested witnesses. However, it is required to be noted thatmerely because PW1 is the brother of the deceased and PW3 is thedriver, that by itself cannot make them interested witnesses and theirevidence cannot be discarded on that ground.

5.8 It is also submitted that in the present case even PW5 is alsoan eye witness. However, the High Court has not reappreciated theevidence of PW5 on the ground that the learned trial Court has held thatPW5 is not an eye witness but a planted witness. It is submitted thathowever the High Court being the first appellate Court was required toreappreciate the entire evidence on record including the deposition/evidence of PW5.

5.9 It is further contended that the High Court has not at allappreciated and considered the fact that PW6 &PW7 are the injuredeye witnesses. That their injuries have been supported by the medicalevidence and the doctor who treated PW6 & PW7. It is submitted thattherefore there was no reason to doubt the credibility and trustworthinessof PW6 & PW7.

5.10 Making the above submissions, it is prayed to set aside theimpugned judgment and order passed by the High Court insofar asacquitting accused Nos. 1 to 3 are concerned.

5.11 Now so far as acquittal of accused Nos. 4 to 11 by the learnedtrial Court as well as by the High Court is concerned, it is vehemently A

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Asubmitted that the prosecution has established and proved the presenceof accused Nos. 4 to 11 at the time of incident and a specific role/overtact has been attributed to them. It is submitted that when accused Nos.4 to 11 were charged for the offences under Section 302 read withSection 149 IPC and when it has been established and proved that theyparticipated in the commission of the offence and they were the part ofBthe unlawful assembly, the learned trial Court ought to have convictedaccused Nos. 4 to 11 also.

6. The present appeals are vehemently opposed by learned counselappearing on behalf of the original accused.

C6.1 It is vehemently submitted by learned counsel appearing onbehalf of the original accused that having found the interpolation/correction in the FIR and when it has been found that 0.30 a.m. hasbeen converted to 9:30 p.m. and having found that even the FIR wasreceived by the learned Magistrate at 4:30 a.m. on 19.01.2007, thoughthe distance between the police station and the Magistrate Court is hardlyDfour kilometres and there was a delay of seven hours in sending the FIRto the learned Magistrate, the High Court has rightly disbelieved the FIRgiven by PW1 and has rightly observed that there are all possibilities ofimplicating the accused falsely.

6.2 It is further submitted that as such cogent reasons have beenEgiven by the High Court doubting the credibility and trustworthiness ofPW1, PW3, PW6 & PW7. That the entire case of the prosecution restson PW1, PW3, PW5, PW6 & PW7. It is submitted that therefore onreappreciation of the evidence and by giving cogent reasons, the HighCourt has disbelieved PW1 & PW3 (so called eye witnesses) and PW6F& PW7 (so called injured eye witnesses). It is submitted that the HighCourt has not committed any error in acquitting Accused Nos.1 to 3 andconfirming the acquittal of Accused Nos. 4 to 11.6.3 Making the above submissions, it is prayed to dismiss all theappeals.

G7. We have heard the learned counsel for the respective partiesat length.

G7. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that there were elevenaccused who were tried together for the offences under Sections147,148, 324, 326, 307, 427 and 302 read with 149 IPC. The learned trialHCourt convicted accused Nos. 1 to 3 for the offences under Sections

M. NAGESWARA REDDY v. THE STATE OF ANDHRA PRADESH

148 & 302 IPC and sentenced them to undergo life imprisonment.However, the learned trial Court acquitted accused Nos. 4 to 11. Theconviction of Accused Nos.1 to 3 has been reversed by the High Courtby the impugned judgment and order and even accused Nos. 1 to 3 areacquitted for the offences for which they were convicted. The HighCourt has affirmed/confirmed the acquittal of Accused Nos. 4 to 11.

7.1. It is required to be noted that so far as the State is concerned,the State has preferred the present appeal being Criminal Appeal No. 74of 2022 challenging the impugned judgment and order passed by theHigh Court insofar as acquitting Accused Nos. 1 to 3 and it is the originalcomplainant who has preferred the appeals being Criminal Appeal Nos.72 & 73 of 2022 challenging the reversal of conviction and acquittingAccused Nos. 1 to 3 as well as dismissing his appeal which was againstthe judgment and order passed by the learned trial Court acquittingAccused Nos.4 to 11.

8. Having heard learned counsel for the respective parties andhaving gone through the judgment and order passed by the learned trialCourt acquitting Accused Nos.4 to 11, which has been affirmed/confirmedby the High Court and the appeal preferred by the complainantchallenging the acquittal of Accused Nos. 4 to 11 is concerned, as such,there are concurrent findings recorded by both, the learned trial Courtas well as the High Court holding Accused Nos. 4 to 11 not guilty. Thefindings recorded in respect of acquittal of Accused Nos. 4 to 11 are onappreciation of evidence on record and the view taken by the learnedtrial Court acquitting Accused Nos. 4 to 11, which has been affirmed/confirmed by the High Court, is a plausible view and therefore the sameare not required to be interfered with by this Court in exercise of powersunder Article 136 of the Constitution of India. Accordingly, CriminalAppeal No. 73/2022 preferred by the original complainant against acquittalof Accused Nos. 4 to 11 is hereby dismissed.

9. Insofar as Criminal Appeal No. 72/2022 preferred by the originalcomplainant and Criminal Appeal No. 74/2022 preferred by the Statechallenging the impugned judgment and order passed by the High Courtacquitting Accused Nos. 1 to 3, reversing the judgment and order ofconviction and sentence passed by the learned trial Court are concerned,while acquitting accused Nos. 1 to 3, the High Court has summarisedthe discussion as under:

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A“(i) The FIR was not registered at the time as claimed by theprosecution, but it was registered many hours after the occurrenceand sent to the Magistrate with unexplained delay, which facilitatedthe police to falsely implicate the accused, obviously after PW1arrived at the police station; B(ii) PWs 1,3,5 and 8 were planted witnesses;

(iii) PWs 6 and 7 could not identify the assailants;

(iv) The accused, being the members of the rival faction, werethe natural suspects and accordingly, they have been implicatedon mere suspicion, without any clear evidence; C

(v) The Court below has completely failed to comprehend theaforementioned aspects and erroneously convicted accused nos.1 to 3, while acquitting accused Nos. 4 to 11; and

(vi) In our opinion, the same reasoning, which was adopted by theCourt below for acquitting accused Nos. 4 to 11, is equallyDapplicable to accused Nos. 1 to 3.”

However, it is required to be noted that in the present case theprosecution examined five important and relevant witnesses – PW1,PW3, PW5, PW6 & PW7, out of which PW1, PW3 & PW5 were theeye- witnesses and PW6 & PW7 were the injured eye-witnesses.EAccused Nos. 1 to 3 were identified by PW1, PW3 & PW6. Though,the learned trial Court has disbelieved PW5, the High Court has not atall discussed and/or re-appreciated the evidence/deposition of PW5, whichas a first appellate Court, the High Court was required to.

10. Having gone through the deposition of the relevant witnessesF– eye-witnesses/injured eye-witnesses, we are of the opinion that thereare no major/material contradictions in the deposition of the eye-witnessesand injured eye-witnesses. All are consistent insofar as accused Nos. 1to 3 are concerned. As observed hereinabove, PW6 has identifiedAccused Nos. 1 to 3. The High Court has observed that PW1, PW3 &PW5 were planted witnesses merely on the ground that they were allGinterested witnesses being relatives of the deceased. Merely becausethe witnesses were the relatives of the deceased, their evidence cannotbe discarded solely on the aforesaid ground. Therefore, in the facts andcircumstances of the case, the High Court has materially erred indiscarding the deposition/evidence of PW1, PW3, PW5 & PW6 andHeven PW7.

10.1 It is true that PW7 could not identify the assailants. However,the prosecution has been able to prove the incident from the deposition/evidence of PW7 and the manner in which the incident took place.

11. One another reason given by the High Court is that the FIRwas not registered at the time as claimed by the prosecution, but it wasregistered many hours after the occurrence and sent to the Magistratewith unexplained delay and according to the High Court, this facilitatedthe police to falsely implicate the accused after PW1 arrived at thepolice station. However, the FIR was lodged within seven hours. As perthe prosecution, it was lodged immediately. The interpolation of the timeof the incident, 0.30 a.m. to 9:30 p.m., could not be explained as thesame was not raised before the trial Court. No question on the samewas asked to the concerned witnesses. Even otherwise, in the facts andcircumstances of the case, the delay of seven hours cannot be said to befatal to the prosecution case. Even the FIR was sent to the Magistratewithin 24 hours, as required under the provisions of the Cr.P.C. PWs1, 3& 6 are all consistent in their testimony and they have fully supportedthe case of the prosecution. We see no reason to doubt their presenceand their deposition.

12. Having gone through the reasoning given by the High Court,we are of the opinion that the High Court has unnecessarily givenweightage to some minor contradictions. The contradictions, if any, arenot material contradictions which can affect the case of the prosecutionas a whole. PW6 was an injured eye-witness and therefore his presenceought not to have been doubted and being an injured eye-witness, as perthe settled proposition of law laid down by this Court in catena of decisions,his deposition has a greater reliability and credibility.

13. Now so far as the finding recorded by the High Court in thefinal conclusion that the same reasoning which was adopted by the courtbelow for acquitting accused Nos. 4 to 11 will also be equally applicableto accused Nos. 1 to 3 is concerned, it is to be noted that the rolesattributed to Accused Nos. 1 to 3 and Accused Nos. 4 to 11 are different.Accused Nos. 1 to 3 are the main assailants. They are identified by theeye-witnesses/injured eye-witnesses. The overt acts of Accused Nos. 1to 3 are different than that of Accused Nos. 4 to 11. Therefore, the caseof Accused Nos. 4 to 11 is not comparable with the case of AccusedNos. 1 to 3.

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A14. In view of the above discussion and for the reasons statedabove, the High Court has committed a grave error in reversing thejudgment and order passed by the learned trial Court convicting AccusedNos. 1 to 3 for the offences under Sections 148 & 302 IPC and the HighCourt has erred in acquitting Accused Nos. 1 to 3. Therefore, theimpugned judgment and order passed by the High Court insofar asBacquitting Accused Nos. 1 to 3 deserves to be quashed and set asideand the judgment and order passed by the learned trial Court convictingAccused Nos. 1 to 3 for the offences under Sections 148 & 302 IPCand sentencing them to life imprisonment is to be restored.

15. Accordingly, Criminal Appeal No. 72/2022 preferred by theCoriginal complainant and Criminal Appeal No. 74/2022 preferred by theState, challenging the impugned judgment and order acquitting AccusedNos. 1 to 3 are allowed and the impugned judgment and order dated21.02.2018 insofar as acquitting Accused Nos. 1 to 3 for the offencesunder Sections 148 & 302 IPC is hereby quashed and set aside. TheDjudgment and order passed by the learned trial Court convicting AccusedNos. 1 to 3 for the offences under Sections 148 & 302 IPC and sentencingthem to life imprisonment is hereby restored. Accused Nos. 1 to 3, namely,Kasireddy Ramakrishna Reddy, S/o Venkata Reddy, Kasireddy RambhupalReddy, S/o Kasireddy Pulla Reddy and Kasireddy Venkateswara Reddy,S/o Sankarananda Reddy are hereby directed to surrender to undergoEthe remaining sentence, within a period of four weeks from today.

Insofar as Criminal Appeal No. 73/2022, preferred by the originalcomplainant challenging the acquittal of Accused Nos. 4 to 11 isconcerned, as observed hereinabove, the same stands dismissed for thereasons stated hereinabove.

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Devika Gujral

Appeals disposed of.

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