Full Judgment Text
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CASE NO.:
Appeal (crl.) 445-446 of 1998
Appeal (crl.) 447 of 1998
Appeal (crl.) 448 of 1998
PETITIONER:
MALEMPATI PATTABI NARENDRA
Vs.
RESPONDENT:
GHATTAMANENI MARUTHI PRASAD AND ORS,
DATE OF JUDGMENT: 27/03/2000
BENCH:
K.T. THOMAS & D.P. MOHAPATRA
JUDGMENT:
THOMAS, J.
L...I...T.......T.......T.......T.......T.......T.......T..J
For the murder of a Gram Sarpanch the sessions court
which tried the case convicted 6 persons for various
offences including criminal conspiracy to commit the said
murder. But a Division Bench of the Andhra Pradesh High
Court, on appeal filed by the convicted persons, acquitted
most of them and even regarding the two who were found
guilty the High Court has chosen to convict them only of the
offence under Section 326 of the Indian Penal Code. They
were sentenced to undergo RI for 7 years. Hence they have
appealed before us by special leave. The son of the
deceased filed a separate appeal by special leave
challenging the judgment of the High Court in so far as it
is favourable to the accused. The State of Andhra Pradesh
has also filed an appeal for restoring the conviction and
sentence passed by the trial court. We heard all the
appeals together.
The incident happened on the night of 18.1.1993, on a
public road. Prosecution case is that the deceased Sitaram
Anjanalelu, the Gram Sarpanch, was proceeding to the house
of his daughter Sujatha (who is married to A.K. Rao). The
time was around 11.00 P.M. when the deceased reached almost
near that house. Then 5 accused (all except A-4 Shashiah)
jumped out from ambush, and waylaid the deceased. After
surrounding him the accused showered him with blows by using
axe, knife and similar lethal weapons. The victim died at
the spot after sustaining extensive injuries.
The background for the said occurrence, as pictured by
the prosecution, is that the deceased was a Congress leader
and 4th accused Shashiah belonged to CPI and as between them
there were enough causes for rivalry including an election
which was held to the Board of Directors of a Co-operative
Society in which a panel set up by the deceased had trounced
the candidate set up by the 4th accused. The newly elected
Board of Directors initiated proceedings against the 4th
accused (who held the office of President of the same
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society earlier) for misappropriation of the funds of the
society. Thereupon 4th accused entered into a conspiracy
with other accused for liquidating the deceased Sitaram
Anjanalelu. Accused 1, 2 and 3 are the sons of 4th accused
and accused Lal Bahadur is his nephew. P.W.1 (Pattabhi
Narendra) is the son of the deceased. He lodged a complaint
in writing with the police on the same night in which he
said that he was walking a few yards behind his father and
witnessed the incident in which all the accused (including
the 4th accused Shashiah) launched the attack on his father.
But the investigating officer came to understand that A-4
was interned in a jail on the previous day in connection
with some other case, and therefore, it was impossible for
him to be present at the scene of occurrence. So the
investigating officer charge- sheeted the remaining accused
mentioned in the complaint for the offence under Section 302
read with Section 149 of the Indian Penal Code.
Nonetheless, A-4 was also arraigned as an accused on the
allegation that he had hatched a criminal conspiracy with
the other accused to finish the deceased off.
Dr. J. Krishnamurthy (PW-10) conducted the autopsy on
the dead body of the deceased. He noticed 17 incised
injuries out of which 10 were on the head, 3 injuries among
them were the most serious injuries and the brain of the
deceased was lacerated.
At the outset, we have to point out that the Division
Bench of the High Court has committed a serious error in
holding that the offence proved as against A-1 and A-3 is
only under Section 326 of the Indian Penal Code. The
assailants, who had participated in the occurrence in which
deceased was killed so brutally, cannot escape from
conviction under Section 302 at least with the help of
Section 34, if not with Section 149 of the Indian Penal
Code. The conviction of the assailant or assailants who
inflicted grievous injuries which resulted in the death of
the victim cannot be limited to Section 326 of the Indian
Penal Code.
On the conspectus of the facts of this case, the only
inquiry which the court needs to conduct is whether any one
of the accused was among the assailants who inflicted
injuries on the deceased. If the finding is in the
affirmative then that accused cannot escape conviction under
Section 302 with the aid of Section 34, if not with Section
149 of the Indian Penal Code.
As this is an appeal under Article 136 of the
Constitution, normally, we would not reopen the concurrent
findings relating to the appreciation of evidence. But in
this case if we adopt that standard, the sequel is that
conviction passed on second and third accused will have to
be altered to Section 302 I.P.C. and the sentence has to be
enhanced to at least imprisonment for life. In view of such
a consequence befalling the convicted persons, we feel it
necessary in the interest of justice to make a reappraisal
of the evidence in order to reach our conclusion regarding
the reliability of the evidence of the prosecution.
If the testimony of PW1 is believable, the corollary is
that the testimony of PW2, PW3 and PW4 can also be believed
because each of them has identified the other as present at
the scene. The consequence is that the accused(except A4)
cannot escape conviction under Section 302 read with Section
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149 of the Indian Penal Code. PW2 and PW3 are the other two
witnesses who said that they were residing in the house of
A.K. Rao(son-in-law of the deceased) and on hearing the hue
and cry from the nearby road they rushed out and saw the
assailants showering blows on the deceased with axe and
knife, etc. Would PW1 have been present at the place when
the occurrence took place? We have noticed some hurdles in
the way for believing that he witnessed the occurrence. The
foremost amongst such hurdles is the unambiguous version
given by PW1 in his first written complaint that he saw
A4(Shashiah) who is the father of A1 to A3, participating in
the occurrence and a specific role (inflicting axe blows on
the deceased) has also been ascribed to that accused. But
it was later understood that A4 was in fact locked up in a
jail during that very night pursuant to a conviction imposed
on him by a criminal Court on the previous day. Jail
records as well as the court proceedings conceived would
have proved that fact and hence the police could not array
A4 (Shashiah) as a ‘participus criminus’. That might be the
reason why police allotted a different role to A-4
(Shashiah) as the chief conspirator over the murder of the
deceased. When PW1 gave evidence in Court, he adopted a
dubious strategy by saying that A4 was not present at the
scene of occurrence but he saw a person having striking
resemblance to A4 giving axe blows on the deceased.
Though to be interned in jail is a misfortune, it became
a blessing to A4. If he was not then in jail, what would
have been the disastrous consequences for him. We have no
doubt that PW1 would certainly have stuck to his version
regarding A4’s role in the same manner as he gave in his
written complaint. If the Court had believed PW1, in that
situation A4 would have been convicted of the offence under
Section 302 I.P.C. Now, we have no manner of doubt that
PW2’s present version, that he identified an assailant
having close resemblance with A4, is nothing but a canard
concocted for the purpose of escaping from the charge of a
rank perjury.
In this context, it must also be borne in mind that A1,
A2 and A3 are the children of A4. 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 A1, A2 and A3
cannot be lightly glossed over. So, we must seriously
consider whether PW1 witnessed the occurrence at all or he
would have reached the place of occurrence only after
hearing about his father’s mishap.
Apart from the above insurmountable hurdle, if PW1 was
present when the occurrence took place, it does not stand to
reason why he was completely spared by the assailants. It
is difficult to believe that if PW1 was present, a young man
of 33 like him could not have done even a bit to go to the
rescue of his father and if he had done so, he would have
sustained injuries, at least some minor injuries. But the
fact is that PW1 did not sustain even a scratch on his
person. Yet another aspect is that if PW1 waited to rush to
his dying father till the assailants stopped attacking him
even then it is difficult for us to conceive that at least
the clothes of PW1 could not have been smeared with some
blood, if not copious blood. But nobody has noticed even a
drop of blood on his clothes.
We are in complete dearth of satisfactory explanation
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for such broad features staring at the reliability of PW1’s
version. Attached to the above features is another odd
feature. The FIR has been prepared on the strength of a
written complaint furnished by PW1. He said that the
complaint was scribed by his nephew who was residing 13
kilometers away from the place. That scribe was not
examined as a witness. We do not know how that scribe was
brought to this place from such a distance and at what time.
There certainly would have been confabulations and
deliberations before preparing the written complaint.
It is pertinent to notice that PW2 and PW3 also said in
their examination in chief itself that an assailant
resembling A4 had participated in the occurrence by hacking
the deceased with an axe on the head. But even they
refrained from saying more than that, lest, any assertion
that A4 participated in the crime would contaminate their
testimony. When we read the further portion of the
testimony of PW2 and PW3, we have come across reasons to be
slow in acting on such testimony as well.
PW2 admitted that he was doing contract work in an
industrial establishment owned by deceased’s brother
(Venugopal Rao). The defence counsel seriously disputed
that claim of PW2. It was sought to be made out that PW2
could not have been present on that night even in that
village because his grand mother had passed away on the
previous evening. When PW1 was asked about that fact, he
said that the parents of PW2 had gone to other village as
they got the information that his grand mother was very
serious and she died at 7.00 p.m. PW2 would clearly have
anticipated that he would be confronted with that question
during cross-examination. So he put forward an excuse that
he was informed of the death of his grandmother only on the
next morning. It is difficult for us to believe that PW2
was unaware of the serious condition of his grandmother
particularly because his parents who were living with him,
had already gone away to see the old lady in her death bed..
PW3 (Pothuraju), an employee under deceased’s son-in-
law A.K. Rao said that he was residing in one of the rooms
of the house of A.K. Rao. His evidence is in tune with PW1
and PW2 and so he also said that a person resembling A4 was
one of the main assailants. Why did he also say that? PW3
being a dependant of A.K. Rao appears to be speaking in
tune with his master because he admitted that he was a
witness in another case against A1 to A4 which was tried in
1980. He also admitted that even his father was a witness
against A4 in a case tried in 1968. We have difficulty to
place reliance on the testimony of such a witness as PW2 in
the aforesaid background.
Although PW4 did not see the occurrence or any part of
it, prosecution examined him as a corroborating witness. He
said that he was a watchman of the poultry farm of one A.
Koteswararao and after his work was over on the date of
occurrence, he walked home and on the way, he saw these
accused(except A4) running with axe, knife, etc. The time
was about 11.00 p.m. then. A little later, PW4 saw the
three witnesses (PW1, PW2 and PW3) and PW4 went to the scene
of occurrence and saw the deceased lying injured and he got
the entire narration of the incident from PW3. Normally, a
witness like PW4 would be sufficient to corroborate the
testimony of the eye witnesses. When Counsel for some of
the accused cross-examined him, he said that it was his
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maiden appearance in any court of law on that day. But when
another Counsel appearing for the remaining accused
confronted him with Ext. D-17 (a copy of his deposition
which he gave in 1957 in another case), he admitted that he
had deposed against A4 even in 1957. As the defence
strongly disputed his claim that he was employed by
Koteswararao, he had to admit, to a Court question, that
there is no record to show that he was so employed. Even
that apart, he said that his watchman work was limited to
the day time. If so how could he account for his presence
at the scene of occurrence at 11.00 p.m.? The above are
features which dissuade us from placing reliance on his
testimony as a witness of truth.
For the aforesaid reasons, we are unable to hold that
prosecution has succeeded in establishing that the accused
in this case were the assailants who attacked the deceased.
We entertain a reasonable doubt on that score.
In the result, we allow the appeal filed by A1 and A3
and set aside the conviction sentence passed on them. They
are acquitted. The remaining appeals are dismissed.