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TMI Blog2013 (1) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for a period of one month each. The Appellants have been further convicted for an offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to undergo simple imprisonment for three months each with the direction that the sentences shall run concurrently. 2. Briefly stated the prosecution case is that on 27th April, 2003, at around 7.00 p.m., the Appellants along with one Papisetti Praveen who was arrayed as accused No. 4 stopped the deceased-Bezawada Srinivasa Rao and PW.1-Alapati Seshadri while the latter were on their way home at Bethavolu Park Centre - the place of occurrence. An altercation between the accused persons on the one hand and the deceased and PW-1 on the other had according to the prosecution taken place on the previous day i.e. on 26th April, 2003, while the deceased and PW.1 were bringing some palmyrah nuts from the fields. PW-3-Sonti Koteswara Rao, a shopkeeper who runs a pan shop in the vicinity, claimed to be a witness to that incident and had intervened and pacified the parties which passed off without any physical harm to either side except that according to the prosecution Appellant No. 1-Chinnam Kameswara Rao ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Code. 4. At the trial the prosecution examined as many as 13 witnesses including PWs.2, 3, 4 and 6, said to be eye witnesses to the incident. The accused did not lead any evidence in their defence. The trial Court all the same came to the conclusion that the prosecution had not been able to establish the charge framed against the accused persons and accordingly acquitted them. 5. Aggrieved by the judgment and order of the acquittal recorded by the trial Court the State filed Criminal Appeal No. 1055 of 2007 before the High Court of Andhra Pradesh at Hyderabad which appeal was allowed in part reversing the acquittal of the Appellants and convicting them for offences punishable under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 of the Indian Penal Code. The acquittal of accused No. 4 was, however, affirmed by the High Court. The Appellants were consequently sentenced to undergo imprisonment for life apart from imprisonment for a period of three months under Section 324 Indian Penal Code as already noticed above. The sentences were directed to run concurrently. The present appeal assails the correctness of the above judgment and ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure, 1973. A bare reading of the said provision leaves no manner of doubt that in an appeal against an order of acquittal the Appellate Court may reverse such order and direct that further inquiry be made or that the accused be re-tried, as the case may be or impose a sentence upon him according to law. Similarly in the case of appeal from a conviction the Appellate Court has the power to reverse the findings recorded by the trial Court and discharge the accused or pass an order for his re-trial etc. 11. The plenitude of the power available to the Appellate Court notwithstanding recent pronouncements of this Court has evolved a rule of prudence according to which the Appellate Court must bear in mind that in the case of acquittal the innocence of the accused is doubly assured by his acquittal. Consequently, if two reasonable conclusions are possible on the basis of the evidence on record the Appellate Court should not disturb the findings of the acquittal recorded in favour of the accused. A long line of decisions rendered by this Court have recognised that while deciding acquittal appeal the power of the Appellate Court is in no way circumscribed by any limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed) 12. What, therefore, needs to be examined in the light of the settled legal position is whether the view taken by the trial Court acquitting the accused was a reasonably possible view. If the answer is in the negative nothing prevents the Appellate Court from reversing the view taken by the trial Court and holding the accused guilty. On the contrary, if the view is not a reasonably possible view the Appellate Court is duty bound to interfere and prevent miscarriage of justice by suitably passing the order by punishing the offender. We have in that view no hesitation in rejecting the contention that just because the trial Court had recorded an acquittal in favour of the Appellants the Appellate Court had any limitation on its power to reverse such an acquittal. Whether or not the view was reasonably possible will be seen by us a little later when we take up the merits of the contention urged by the Appellant regarding involvement of the accused persons in the commission of the crime. 13. That brings us to the question whether absence of a charge under Section 34 of the Indian Penal Code would by itself operate as an impediment in the Appellate Court recording a conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with one of the named persons? If the Court could do so, it would be making out a new case for the prosecution: it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. (Underlined for emphasis) 14. The legal position was reviewed by a two-Judge Bench of this Court in Darbara Singh v. State of Punjab 2012 (8) SCALE 649. In that case also charges were framed against two of the accused persons under Section 302 Indian Penal Code whereas against the third accused the charge framed was under Section 302 read with Section 34 Indian Penal Code. The trial Court had acquitted the third accused but convicted the first two accused much in the same manner as is the position in the present case. The contention before this Court was that in the absence of a charge under Section 34 no conviction could be recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to defend himself against the said charge(s). 15. The 'failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence, of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Room for the deceased. No sooner they saw him approaching the place where they were waiting that they went behind the Reading Room to fetch the stout sticks that they appear to have hidden from public view only to mount a surprise attack on the deceased. This implies that the Appellants had made preparations for the commission of the offence and the incident was premeditated as a sequel to the confrontation that the two parties had on the previous date. The last and by no means the least important circumstance is the nature of the injuries inflicted upon the deceased on the vital part of the body resulting in fracture of the skull, sufficient in the ordinary course to cause death. The evidence on record suggests that all the three accused persons be laboured the deceased and continued their assault and aggression even when the deceased had fallen to the ground on account of the head injuries sustained by him. The Appellants fled from the place of occurrence only when they felt that the deceased was dead. All these circumstances leave no manner of doubt that the Appellants shared the common intention to kill the deceased and that they had acted under a premeditated plan. It is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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