LexMD. ANKOOS & ORS. versus THE PUBLIC PROSECUTOR, H!GH COURT OF A.P.
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[2009] 15 (ADDL.) S.C.R. 616 A MD. ANKOOS & ORS. v. ~ ~> THE PUBLIC PROSECUTOR, H!GH COURT OF A.P. (Criminal Appeal No, 120 of 2008) NOVEMBER 6, 2009 ·•, B (D.K. JAIN AND R.M. LODHA, JJ.] Penal Code, 1860 - ss. 3021149 - Conviction under - , Apcused suspecting that deceased practiced sorcery - " c Murder of five and injuries to two - 77 accused charged u/ss. 148, 448, 307, 302, 120-B rw s. 109 - Acquittal by trial court - High Court convicting 19 persons u/s. 3021149 - Interference with - Held: Evidence of eye-witness.es full of embellishments and improvements - High Court erred in D placing reliance on the case diary as a piece of evidence - Accused having been acquitted u/s. 148 by courts below, they could not have been legally convicted by High Court u/s. 3021 ..,.. 149 - Offence of rioting occurs when members are charged "-- with murder as common object of unlawful assembly - All E accused charged u/s. 448 acquitted as prosecution failed to establish the said offence against them - Absence of cogent and reliable evidence against accused connecting them to crime - Thus, order of High Court set aside - Code of Criminal Procedure, 1973 - s. 161(3) and 172(2). ,. t- F According to the prosecution case, accused suspected that deceased were practicing sorcery and as a result few deaths took place in the village. On the fateful day, 78 persons armed with sticks and chilli powder formed an unlawful as~embly and committed murder of G D-1, D-2, D-3, D-4, D-5 and injured PW-6 and PW-7. They poured kerosene on t~e deceased and set them on fire. ~ " 77 accused were tried for offences u/ss. 148, 448, 307, 302, 120-8 rw s. 109 IPC. Trial court acquitted all of them. High Court upheld the acquittal of 59 persons u/s. 148 H 616 MD. ANKOOS & ORS. v. THE PUBLIC 617 PROSECUTOR, HIGH COURT OF A.P. . and 448 IPC but convicted others for offence punishable A ~ ~ u/s. 302/149 IPC and sentenced them to imprisonment for life. Hence the present appeal. Allowing the appeal, the Court HELD: 1. The view of the trial court in passing the B judgment of acquittal is a possible view and cannot be said to be palpably wrong on facts or based on erroneous view of law and, therefore, High Court was not justified in interfering with the judgment of acquittal. Five persons were done to death in the dead of night in a c ghastly manner and the whole incident is quite shocking but in the absence of cogent and reliable evidence against the appellants connecting them to crime, view of the trial court in passing the judgment of acquittal cannot be said to be unjustified. [Para 30] [642-D-F] D • "I 2.1. The prosecution tendered PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 as eye-witnesses in support of its case. The witnesses other than PW-2, PW- 3 and PW-4 did not support prosecution case and they E were declared hostile witnesses. PW-2 is son of D-1. Trial court held that his evidence is full of embellishments and improvements. Trial court was also not convinced to )I accept the testimony of PW-3, husband of 0-5 as his -1 evidence was inconsistent on material points with the evidence of PW-2. Trial court pointed out the material F contradictions in the deposition of PW-3. As regards PW- 4 who is son of D-3 and D-4, the trial court found his evidence self-contradictory and also doubted his witnessing the incident. [Paras 14, 15 and 16] [632-A-B; 634-C;635-C-D] G ~ ¥ 2.2. Although PW-6 and PW-7 are injured witnesses and, according to prosecution, they were beaten at the scene of offence by the villagers but in their deposition, they stated that they went to the scene of occurrence H 618 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. A voluntarily. Neither of them named any of the accused for the injuries sustained by them. PW-8 is daughter of 0-3 and 0-4 and she deposed that she did not witness the incident and came to know about the same on the next day through the wife of PW-4. PW-9 deposed that at B midnight he heard the commotion and rushed to the scene of offence but he returned back to his house after somebody beat him and he could not identify as it was dark night. Thus, the trial court held that PW-5 to PW-9 have not supported the case of prosecution at all. They C were declared hostile witnesses by the prosecution. [Paras 17 and 18) [636-8-D] 3. High Court accepted the view of the trial court that offence punishable u/s. 148 IPC is not made ou
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