CHAGANTI KOTAIAH & Ors. v. GOGINENI VENKATESHWARA RAO & Anr.

Accused No; 5 challenged his conviction before the High Court in Criminal Appeal No. 201 of 1969. The other seven E · . convicted accused, namely, accused Nos. 6, ·7; 14, 18, 19, 24 and . 25, filed Criminal Appeal No. 202 of 1969. One Gogineni Venkateswara Rao, who gave evidence.as PW 7 and who was a brother of the deceased, Koteswara Rao, filed Criminal Revision Case No. 727 of 1969 under sections 435 and 439 of the Code of Criminal Procedure before the High Court against all thirty accused challenging the several acquittals recorded against them by the learned Sessions Judge. The High Court allowed . the two Criminal Appeals as well as the Criminal Revision and after setting aside the judgment of the Sessions Court, remanded "the entire case for retrial. Criminal Appeal No. 173 of 1970 is by all the thirty accused against the order in Criminal Revision Case No. 727 of 1969; while Criminal Appeal No.

174 of 1970 is by the eight accused, who had been convicted for different offences under sections 302, 148, 323 ;ind 324. Mr. Basi Reddy, learned counsel for the appellants in both . the appeals, has attacked the judgment of the High Court on the ground that the High Court has exceeded its jurisdiction in order- ing a r~trial at the instance of a pri'.'ate party, namely, PW 7. Accordmg to the learned counsel, the Judgment of the Trial Court . does not suffer from any of the infirinities the existence of which alone gives jurisdiction to a High Court under exceptional cir- F G H A B c D E ,970. SUPREME COURT REPOJ.TS (1973] 3 S.C,R. jurisdiction at cumstances to interfere under its revisional It was further urged that there has instance of a private party. been no consideration of the appeals filed by the eight accused, who had been convicted of certain offences. The reasons given by the Trial Court for acquitting completely the twenty-two ac ocused and for acquitting the eight convicted accused of certain finally other offences were fully supported before us. .ilrged that no case had been made out for High Court in. its revisional jurisdiction and the proper approach should have been to dispose of on merits the two Criminal Appeals filed by the eight convicted accused.

It was interference by On the other hand, Mr. Narasimhachari, learned counsel .appearing for PW 7, who filed the Criminal Revision, no doubt attempted to support in full the order of retrial passed by the High Court. We should frankly say that he found considerable difficulty in supporting the wholesale retrial ordered by the High Court. But the learned counsel presse;i before us for acceptance 'the infirmities pointed out by the High Court in the reasoning of the learned Sessions Judge which, according to him, iustified at least a reconsideration of the whole matter by the Trial Court In particular it was stressed that >there has been no consideration by the Trial Court of the constructive liability of the accused of the various offences with which they were charged read with section 34 or in the alternative, section 149. The reasons given by the Trial Court for holding that the dying declaration, Ext.

P 15, made by Ratnababu cannot be treated as eviCience regarding the attack on Koteswara Rao, are erroneous in law. By this reason i11g the Trial Court has really shut out that piece of vital evidence 'from consideration. These are some of the aspects that have been stressed for sustaining the order of the High Court. As the State is a. party in the appeals before us, we have heard its counsel, Mr. Ram Reddy, merely to assist us. Mr. Ram Reddy ha> also supported the above reasons and has urged that these circumstances clearly show that there has beeri no proper trial before the learned Trial Judge. In view of the very serious infirmities in the reason ing of the Trial Court, the only proper course to be adopted-and which, according to him, has been rightly adopted by the High Cout1-'is to have a retrial. In the view we 1ake that the order of the High Court ordering a retrial cannot be sustained and the two Criminal A pp ea ls filed bv the eight convicted accused will have to be sent b'ack to the High Court for being heard and disposed of on merits.

We do not think it necessary to very elaborately deal. with the various items of evidence on record as also the reasons given by the learned Sessions Judge. apperl.s by the High Court, we retrain also from making any com- In order not to prejudice the hearing of F G H CHAGANTI KOTAIAH v. G. v. RAO (Vaidia/ingam, J.) 871 A B c 0 the. case of to broadly state It is now necessary ments or remarks about the nature of the evidcmce adduced by the prosecution as well as the criticism of the· same by the -accused. prosecution as well as the findil)gs recorded by 'the learned Sessions Judge. In the village of Visadala there were two factions, one led by the 3rd accused and the other by PW 23, a brother of Koteswara Rao, one of'the deceased. All the thirty accused belong to the party of the 3rd accused. The 2nd accused was Sarpanch of the village and the 1st accused was the acting Village Munsif at the time of the occurrence i.e.

August 16,'1968. PW 23 was the President of the village Panchayat from 1956 to 1964 after which period the 2nd accused came to power. There was a mu!tj-purpose Cooperative Society established in 1963 in village a.nd the mernb~rs o.f l:joth 1he factions claimed to be the President or Secretary of this society. This rival claim was the subject of Writ Petitians in the High Court. The 1st accused the acting Village Munsif at the time of the occurrence and his appointment was bitterly resented by the oppo5ite group. All this clearly show that was acute bitterness and rivalry between the members of the two groups. The proseculion case is as follows : On the morning of August 16, 1968, PWs 5 and 6 who are brothers and who had taken• a land on lease for cultivation, raisad a cross-bund in the canal for the purpose of diyerting water to their field. Some time later, accused Nos. 2, 6 and 21 came and asked PWs 5 and 6 to remove the cross-bund but they refused.

The third accused loft the place abusing the two witnesses. About 12 Noon on the same day, PWs 5 and 6 noticed that there was diminuHon of water in the canal. At that time Ratnababu, who was coming along-side the canal, was asked by these witnesses to plug amy leakage near the cross-bund. Ratnab)lbu accordingly was trying to Close the leakage when all the thirty accused, who belonged to one faction, came to that place armed w'.th different weapons. The !st accused stabbed PW 5 with a spear both on his chest and on his temple. The 6th accused stabbed PW 5 on the right palm and the right wrist. The 3rd accused beat PW5 with a spear on his hand. When PW 6 interfered, he was stabbed with a spear on the left chest by A-27 and was also beaten on the head back and leg by A-21. All the accused then.ran towards Ratnababu, who was plugging the hole in the siphon. Ratnababu. on seeing the accused coming towards his direction, ran to the field of PW 23 where Koteswara Rao with his brother, PW 7, was working.

Accused Nos. 1 to 4 stabbed Koteswara Rao QD, the various parts of his body with spears and after he fell down. they along with A 12, A 13, A 22 and A 23 inllicted further injuries. When PW- 7 attempted to interfere to save his brother, he was attacked by A 14, A 19, A 24 and A 25. He was also kicked by A 20. Some E F G H 872 SUPREME COURT REPORTS (1973] 3 s.c.11.. of the accused turned their attention on Ratnababu. A 5, A 6, A 7, A 8 and A 10 inflicted spear injuries on Ratnababu. When PW 13 came to help Ratnababu, he was speared by A 18. All the accused !hen ran away from the place. PW; ! to 4 had witnessed the entire occurrence. Koteswara Rao was removed to his house in the village and he died within a very _short lime. Ratnababu was taken to the Government General Hospital, Guntur and, as his condition was very serious, a dying declaration, Ext. PIS, recorded by the Magistrate, PW 16, at about 8.40 P. M., the same day.

Ratnababu died at 1. 29 A.M. on .August 17, 1968. The Magistrate had also recorded a statement, Ext. P 1, from PW 5 and a statement, Ext. P 16, from A 30. At this stage it may be mentioned that the witnesses, who received injuries, namely, PWs 5, 6, 7 and 13 as well as some of the accused, who had received injuries, namely, A 5, A 14, A 29 am! A 30, had all arrived at the Government General Hospital, Guntur, at about the same time and were treated by the same doctor. There is on record the wound certificates issued in respect of these persons. Apart from the wound certificate issued to Ratna babu, at the time of his admission to the Hospital there is also the description of the injuries sustained by him, as mentioned in the postmortem certificate. There is also on record the postmortem certificate issued to the other deceased, Koteswara ·Rao, which also shows that he had sustained a number of injuries.

Most of the accused. when they were examined under section the occurrence. The 312, pleadeJ complete ignorance about 5th accused, however pleaded that on the date of the occurrence he, along with Al4 and A30, had gone to water the field of A30. Near the cross-bund they .found PWs 5 to 7, 13 and 23, the deceas ed Ratnababu and certain others. A 30 requested PW 23 to remove the cross-bund to enable him to take water to his field. On their refusal A30 attempted to remove the cross-bund when at the instigation of PW 23 he was stabbed by one Appa Rao and als" attacked by PW 23. PW 23 also beat him and ran away. A 14 stated that he was beat~n at the cross-bund by PW 23. A 29 also pleaded that he smtained injuries at the cross-bund when he was with AS. A 14 and A30. A30 also gave a somewhat similar statement. Thus it will be seen that while according to the prosecution the occurrence took place Ln two stages, one at the place where the cross-bund was erected and the other in the field of PW23, on the other hand, accordin~ to the defence, the occurrence had taken place at the place where the cross-bund was raised by PWs S and 6 and that there was no incident whatsoever near the field of PW 23.

The learned Sessions Judge made a local inspection of the s;ene of occurrence and has also noted his observations. It s · C D E F G H A 8 c D E F G H CHAGANTI KOTAIAH v. G, v. RAO ( Vaidialingam, J.) 8 7 3 will be seen that according to the learned Sessions Judge the field of PW 23 was at a distance of 290 yards, as the crow flies, from the place of the cross-bunding. He has further noted that was a donka which was about five feet lower in level compared to tl\e neighbouring fields and that it would not have been possible for the accused, who were at the crosi:-bund, to see wnd identify anybody who may have been near the donka. The learned Sessions Judge, after a consideration of dying declaration of Ratnababu, Ext. P 15, and other evidence, is of the view that the prosecution case of Ratnababu running from the siphon to the field of PW 23 and that he was chased by the accused, .is improbable.

It is the view of the learned Judge that •the prosecution has not come forward with the truth as to how the accused, after the occurrence at the cross-bund, happened to be near the field of PW 23. Regarding the occurrence at the cross bund, the court's view is that there is the evidence of only PWs 5 and 6. Though PWs 5 and 6 had received injuries, they have not said anything as to how accused Nos. 5, 14, 29 and 30 sustained injuries. These accused also have sustained injuries at the same time as PWs 5 and 6 and at the same place, namely, the cross bund. The prosecution has stressed as to how these accused In view of these and other circumstances, the received injuries. finding of the learned Sessions Judge is that these four accused had acted in self defence at the incident that took place at the cross-bunding by PWs S and 6. The injuries sustained by PWs 5 and 6 being of a very minor nature sustained by them wnen the said accused acted in self defence, none of those accused are guilty of any offence regarding this particular incident.

Regarding the second stage of the occurrence at the field uf PW 23, the Trial Court's view is that the witnesses, who spoke to the same, are PWs 1 to 4, 7 and 13. PWs 7 and 13 had (eceived injuries. After a consideration of the evidence of PWs 1 to 4, the learned Judge expresses the view that they are tutored witnesses and that they have been selected because they belong to the party of PW 23. The learned Judge disbelieved evidence and eschewed the same from consideration. Left with the two other Witnesses, namely, PWs 7 and 13, the Trial Court is of the view that they being interested witnesses, their evidence will have to be treated with great caution and that it would be safe to accept their evidence only if it is corroborated biy other independent evidence. Ultimately the learned Judge held that their evidence cannot be accepted regarding the atltack on Kutes wara Rao. Having regard to the evidence adduced in the case, the'learned Judge has recorded. a finding that nOille of the accused can be held liable for the offence of causing the death of Kutes wara Rao.

S~L 797Sup.C. I. /73 874 SUPREME COURT REPORTS [ 197 3] 3 s.c.R. A But so far as the attack on Ratnababu was concerned, the learned Judge took into account ·the evidence of PWs 7 a.nd 8, the medical evidence as also the dying declaration, Ext. P 15 and convicted accused Nos. 5 to 7, 14, 18, 19, 24 and 25 in the inan- ner mentioned by us earlier. The learned Judge has also given reasons as to why some of these accused are not guilty of the CYlher offences with which they were charged and also for B acquitting the rest of the tweritytwo accused. The learned Judge has also given the reasons for convicti1ng some cf the accused only under sections 323 and 324. The learned Judge's further view is that though certain charges had been framed read with section 34 or alternatively with 149, in the manner in which the incident has ul'tima1ely been found to have happened, there is no c scope for making any of the accused constructively liable under these provisions.

We have already mentioned that it is only the convicted eight accused, who had filed two different appeals before the High Court challenging their conviction. The State had not filed an appeal under section 417 .of the Criminal Procedure Code, either challeng- ing the acquittal of these eight accused of fue other offences or against the acquittal of the remaining twentytwo a~cused of all the charges. We are particularly mentionin11 this aspect because if the State had filed such an appeal, the nature of jurisdiction exercised by the High Court will be entirely different. On the other hand, it was the brother of one of the deceased, namely, PW 7, who had filed, as a private party, a Criminal Revision E challenging the complete acquittal of the twentytwo accused as well as the acquittal of lhe eight convicted persons of the other charges. 0 After a review of \he earlier decisions, the extent of the juris diction of the High Court in the .matter of interfering in revision F against an order of acquittal has been laid down by this Court in K. Chi1111aswamy Reddy v.

State of Andhra Pradesh(') follows : "It is true that it is open to a High Court in revision to set aside an order of acquittal even at tlle instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases when there is some glaring defect in the proce- dure' or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section ( 4) of s. 439 forbids a High Court from converting a finding o( acquittal into one of con viction and that makes it all the more incumbent on (I) (1%3] (3) S. C.R. 412. G H A 8 c D E F G H CHAGANTI KOTAIAH v. G. v. RAO (Vaidialingam, J.) 875 the High Court to see that it does not convert the finding of acquittal into one of c0nviction ~ the indirect method it cannot itself directly of ordering retrial, when . convert a finding of acquittal into a finding of con viction.

This places limitations on the power of the High Court to get aside a finding of acquittal in revision and it is only in exceptional cases :hat this' power should It is not possible to lay down the crileria be exercised. for determining such exceptiOlllal cases which would cover all contingencies. We may however indicate some cases oi this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the proseculion wished 10 produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.

These and other cases of similar nature can properly be held to be cas~ of exceptional nature, where tfhe High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of s. 439 ( 4) ." The above principles have also been reiterated in Ma/Jendra Pratap Singh v; Sarju Singh & Anr. (1), Khetrabasi Sama! etc. v. ) and Amar Chand Agerwalla v. Shanti Bpse State of Orissa etc. (2 and Another etc. ( 3) . We have, therefore, to see whether the order of the High Court setting aside the order of acquittal of the eight convicted accused of certain charges as well as the acquittal of the remaining twentytwo accused of all the charges can be upheld on the above principles. The High Court has admittedly not considered the grievance of the eight convicted 11-ccused in their Criminal Appeals Nos.

201 and 202 of 1969. A perusal of the Judgment of the High Court shows that it has mainly dealt with the Criminal Revision filed by In that context, it ~as considered the .ma!e~ial the private party. evidence in some detail and has practically .expressed an opmmn against the accused in some respects. It has practically . given a finding that all the thirty accused will have.to be convicted under (I) [196i] (2) S. C. R. 287. (3) Criminal Appeals Nos. 101-103 decided on 12-12,1972. (2) [1970] (!} S. C. R. 880. · • A 876 SUPREME COURT REPORTS (1973] 3 S.C,R. section 302 read with either section 149 or at any i;.tte section 34. It has held that the dying declaration of Ratnababu, Ext. P 15, is admissible even regard.mg the attack on the other deceased, Kot eswara Rao. The High Court has also expressed its opinion that Ext. P 15 establishes, on the facts of the present case, that accused Nos. 1 to 4 attacked Koteswara Rao and caused his death.

The Hiah Court's view also appears to be that the search or corrobora- tio;;, made by the Trial Court regarding the evidenci:i of some of · the prosecution witnesses was unnecessao/. Even some of. the convicted accused should have been convicted for more senous offences. More or less on this reasoning, the High Court reman- ded the entire case for retrial.· . We are of tlte opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down jn the decisions referred to above. Notwithstanding the fact that sub-section ( 4) of section 459 does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the Trial Cou.1:t to convict them after a retrial.

There is no question of lack of jurisdiction in the Trial Court to try the case; nor was any attack made that any evidence has been shut out at the trial. Whether the dying decla ration, Ext. P 15, by Ratnababu can be taken into account regard ing the attack on Koteswara Rao, is a matter which the Trial If its view Court was entitled to decide one way or the. other. was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Coui:t· if the State had filed an appeal against acquittal. · Further the mere fact that the learned Trial Judge he_ld that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence has already come on record .. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead.

All available evidence has been let in by both the prosecution and the accused. A c D E F Nor can it be stated that there has been any glaring defect in G the proce~ure or a manifest eiror on a point of law and consequ ent!'!' leadmg to a flagrant miscarriage of· justice. As mentioned earlier, sub-section ( 4) of section 439 forbids a High Court from converting a finding of acquittal into one of conviction by an in direct. mcthod of ordering retrial when the High Court itself can- not drrectly convert a finding of acquittal into a finding of con yiction. · TJz.e .Hi!111 Court: in our opinion, has missed tllese very 1mpo!1ant. lmut:;.~ons o~ its power to set aside. ithe finding of acquittal m revISion which could be done only 10 very exception- H CHAGkNTl KOTAIAH v. G. v. RAO (Vaidialingam, !.) 877 A B c D E F al circumstances. In the case on hand, the High Court was not justified in considering the evidence in sµch detail if it was really going ¢0 order a retrial.

Such a detailed conside~ation of evidence and an expression of opinion aboµt the guilt of the accused, in our opinion, has really loaded the dice agaimt the acclised when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with section 34 or alternatively with section 149 IPC, the Trial Court has not recorded any finding in this regard. Here again, the High Court's view is erroneous. We have already referred to the finding recorded by the Trial Couit that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held con structively liable. It is on that ground that the Trial Court has not found rthe accused constructively guilty. We have indicated the reasons, which prompted the High Court to order a retrial. The consequence of this will be to put consider able strain on the accused who have already gone through a trial at considerable stress and expense.

After going through the .iudgment of the learned Sessions Judge, we cannot certainly say, ·particularly in view of rthe evidence on record, that either the acquittal of the twentytwo accu~ed or the acquittal of the eight convicted accused of rthe rest oJ' the charges was not justified. At any rate, it may be safely stated that the learned Sessions Judge has taken into account all the relevant circumstances. It may be that there are slight mistakes in some of the reasons given by him but the judgment as a whole shows that he has really applied his mind to the various pieces of evidence before passing the order of acquittal in the manner he has done. In the particular circum stances of this case, the interference in revision by the High Court at the instance of the private party was not justified. The two appeals filed by the convicted accused, namely, Criminal Anoeals Nos. 201 and 202 of 1969 have not been dealt with by the High Court on merits.

The appellllJtlts therein .have a right to have those appeals heard and dispossed oJ' by rthe High Court according to Jaw. In the result, Criminal Appeal No. 173 of 1970 is allowed . and the judgment and order of the High Court in Criminal Revision Case No. 727 of 1969 a.re set aside and the said Criminal Revision will stand dismissed. Criminal Appeal No. 174 of 1970 is also allowed and in consequence Criminal Appeals Nos. 201 and 202 of 1969 filed by the eight accused are remanded to the High Court for hearing and disposal according to law. H V.P.S. Appeal partl.v allowed.