Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.408 OF 2007
Anna Reddy Sambasiva Reddy & Ors. ..Appellants
Versus
State of Andhra Pradesh ..Respondent
J U D G E M E N T
R.M. LODHA, J.
This criminal appeal by special leave unfolds a
woeful tale of a village political rivalry leading to double
murder; prior thereto also there were attacks by rival factions
that led to two murders.
2. Fifteen persons were arraigned before the trial
court for the offences under Section 302, 307, 307 read with
149, 148 and 341, IPC. The trial court convicted only eleven
among them and acquitted two accused. The other two
accused died during the trial. The convicted persons were
sentenced under Section 302, IPC, to life imprisonment and
varying periods of imprisonment under other offences; fine
with default stipulation was also imposed. All the eleven
convicted persons filed appeal before the High Court. The
High Court affirmed the conviction and sentence passed by the
trial court. All these eleven convicted persons preferred
special leave petition in which leave has been granted.
During the pendency of the appeal, one more convicted
person has died.
3. Chinthalajuturu in Vemula Mandal of Cuddapah
District (Andhra Pradesh) is a faction-ridden village. One of
these factions is led by Kakarla Gangi Reddy (victim group)
that supports Congress Party. The leader of the other faction
is Annareddysamba Siva Reddy (accused group) which
supports Telugu Desam Party. There were instances of attack
between these groups earlier also. One year prior to the
present incident, one Yeddula Gangi Reddy of the Congress
Party and belonging to victim group was murdered. About a
fortnight prior to the incident, one Sirigireddy Prathapa Reddy
of accused group was murdered. For the murder of
2
Sirigireddy Prathapa Reddy, the members of victim group
figured as accused. It is for this reason that A.M. Annareddy
Siva Reddy started residing at Pulivendula.
4. On May 16, 1996 at about 9.00 A.M. Annareddy
Siva Reddy (deceased hereinafter referred to as D-1), Yerram
Reddy Pulla Reddy (deceased and hereinafter referred to as
D-2), Annareddy Bala Gangi Reddy (PW-1) - brother of D-1,
Annareddy Jagan Mohan Reddy (PW-3) - nephew of D-1 and
one Ramiredy Narayana Reddy left Pulivendula in a jeep
driven by Ala Krishnaiah (PW-2). D-1 sat in the front seat by
the side of driver (PW-2). PW-1 and D-2 occupied the
second row seat behind D-1 and PW-2.
PW-3 and Ramireddy Narayana Reddy occupied the rear seat
of the jeep.
5. When the said jeep reached near Gollalaguduru
Harijanawada village, D-1 saw a jeep with the members of
accused group seated therein, coming from the opposite
direction. Seeing this, D-1 asked PW-2 to reverse the jeep.
PW-2 had hardly reversed the jeep that Annareddi Sambasiva
Reddy (A-1), Annareddi Ramakrishna Reddy (A-2), Annareddi
Ramasura Reddy (A-3), Yeddula Eswara Reddy (A-4),
3
Yeddula Gangi Reddy (A-5), Annareddi Gangi Reddy (A-6),
Palle Venkatarami Reddy (A-7), Annareddi Srinivasul Reddy
(A-8), Dasareddigari Chalama Reddy (A-9), Dasareddigari
Lakshmi Reddy (A-10), Singam Pedda Pulla Reddy (A-11),
Singam Chinna Gangi Reddy (A-12), Kakarla Subbi Reddy
(A-13), Annareddi Lakshmi Reddy (A-14) and Annareddi
Ramana Reddy (A-15) came out of their vehicle and
surrounded the jeep of D-1. A-1, A-2, A-10 and A-13 were
armed with axes while the others were armed with Eathapululu
(sickle). A-1 to A-9 hacked D-1. A-3, A-6, A-7 and A-10 to
A-13 hacked D-2. D-1 and D-2 died on the spot. A-1, A-3,
A-6, A-7 and A-10 to A-13 inflicted grievous injuries on PW-1
whereas A-7, A-9, A-10 and A-14 inflicted injuries on
Annareddy Jagan Mohan Reddy (PW-3) and Ramireddy
Narayana Reddy. A-14 attacked PW-3 and A-15 attacked
PW-2.
6. PW-1 was taken to Pulivendula Government
Hospital by few residents of Chinthalajuturu village. Dr. T.V.
Raghavendra Reddy (PW-10), Civil Assistant Surgeon
attended on him and gave PW-1 the necessary medical aid.
K. Danam (PW-11) - Assistant Sub Inspector of Police,
4
Vemula Police Station while he was at Pulivendula came to
know of the incident at about 1.50 P.M. He went to the
Pulivendula Government Hospital and found that PW-1 was
undergoing treatment. After being satisfied that PW-1 was
conscious and able to give his statement, in the presence of
the doctor (PW-10), he recorded statement (Ex.P-1) of PW-
1. PW-11 then went to Vemula Police Station and registered
the case (Crime No.26/1996) and forwarded a copy of the first
information report to the concerned magistrate immediately
thereafter.
7. A. Venkateswara Reddy (PW-12) - Inspector of
Police, took up investigation and conducted further
investigation on May 17, 1996. He conducted inquest of the
dead bodies and sent them to Government Hospital,
Pulivendula for post-mortem examination. PW-10 conducted
autopsy of the dead bodies and issued post-mortem reports
Ex.P.18 and Ex.P.19. PW-10 also examined the injured PW-
2 and PW-3 and issued injury certificates Ex.P.13 and Ex.P.16.
8. In order to complete the narration of facts, it may
be noticed here that during the course of investigation, A-14
and A-15 pleaded alibi. The Investigating Officer took all
5
necessary steps towards investigation and after collecting the
necessary evidence and on completion of investigation, he
filed chargesheet against A-1 to A-13 before the Court of
st
Judicial Magistrate 1 Class, Pulivendula who committed them
to court of sessions for trial. The accused were charged for
the following offences:
“(i) A-1 to A-13 for rioting under Section 148 IPC;
(ii) A-1 to A-13 for wrongful restraint under Section 341 IPC;
(iii) A-1 to A-13 for voluntarily causing grievous hurt to PW-1 and
PW-3 under Section 326 IPC;
(iv) A-1 to A-5 and A-6 to A-9 under Section 302 IPC for the murder of
D-1;
(v) A-3, A-6 to A-8 and A-10 to A-13 under Section 302 IPC for the
murder of D-2;
(vi) A-1, A-3, A-6 to A-8, A-10, A-12 and A-13 under Section 307 IPC
for attempt to murder PW-1;
(vii) A-7, A-9 and A-10 under Section 307 IPC for attempt to murder
Ramireddi Narayana Reddy;
(viii) A-2, A-4, A-5 and A-11 under Section 307 read with Section 149
IPC for attempt to murder PW-1.”
9. Since A-14 and A-15 were deleted from the
chargesheet by the Investigating Officer, a private complaint
st
came to be filed by PW-1 before the Judicial Magistrate 1
6
Class, Pulivendula. The concerned magistrate also
committed A-14 and A-15 to the court of sessions for trial.
10. The prosecution examined 13 witnesses including
three eye-witnesses (PW-1 to PW-3) and marked
documents Ex.P-1 to Ex.P-28 and exhibited M.O. 1 to
M.O.14.
11. In their statement under Section 313, Cr.P.C., the
accused denied their role in the crime.
12. The III Additional Sessions Judge, Cuddapah, on
consideration of both oral and documentary evidence vide his
judgment dated April 5, 2004, found A-1, A-2, A-4 to A-8 guilty
of the offence under section 302 IPC; they were sentenced to
undergo imprisonment for life and a fine of Rs.1,000/- with
default stipulation. A-6, A-7, A-10 to A-13 were found guilty
of the offence under section 302 IPC and sentenced to
undergo imprisonment for life and a fine of Rs.1,000/- with
default stipulation. A-6, A-7, A-10 to A-13 were found guilty
of the offence under section 307 IPC as well and sentenced to
undergo imprisonment for five years and a fine of Rs.1,000/-
with default stipulation. A-2, A-4 and A-5 were found guilty
of the offence under section 307 read with section 149 IPC
7
and sentenced to undergo rigorous imprisonment for five
years and a fine f Rs.1,000/- with default stipulation. A-1, A-
2, A-4 to A-8, A-10 to A-13 were found guilty of the offence
under section 148 IPC and sentenced to undergo imprisonment
for one year and a fine of Rs.500/- with default stipulation.
The sentence passed against each of the accused was
ordered to run concurrently. The trial court acquitted A-14
and A-15 of all the charges. A-3 and A-9 died during the trial
and, thus, the case abated as against them.
13. Aggrieved against their conviction and sentence, A-1,
A-2, A-4 to A-8 and A-10 to A-13 filed appeal before the High
Court. The State preferred separate appeal against that very
judgment in so far as acquittal of A-14 and A-15 was
concerned.
14. These two appeals were heard together by the
Division Bench of the High Court and were dismissed on
March 9, 2006.
15. The present appeal now subsists on behalf of
A-1, A-2, A-4, A-6 to A-8 and A-10 to A-13 since A-5 has died
during the pendency of appeal.
8
16. Dr.T.V. Raghavendra Reddy (PW-10), Civil
Surgeon, Government Hospital, Pulivendla conducted post-
mortem examination on the body of Annareddy Siva Reddy
(D-1) on May 17, 1996. In the post-mortem report (Ex.P-18), he
recorded the following external injuries on the body of D-1:
“ 1. An incised wound in the middle of right upper arm
measuring about 7 cm x 3 cm x 4 cm deep. Muscles cut
and fracture of bone present.
2. An incised wound 5 cm above wound No.1 measuring
about 7 cm x 3 cm x 2 cm deep. Muscles cut.
3. An incised wound from the lateral part of the left eye
below the ear to the root of neck measuring about 20
cm x 3 cm x 5 cm deep. Muscles cut and fracture of
mandible and spinal process.
4. An incised wound 1½ cm above wound No.3
measuring about 15 cm x 1½ cm x 4 cm deep.
5. An incised wound 7 cm x 1 cm x bone deep 1 cm
above wound No.4.
6. An incised wound 2 cm above wound No.5 measuring
about 5 cm x 1½ cm x bone deep fracture of occipital
bone present.
7. An incised wound in the left occipital area measuring
about 8 cm x 5 cm x bone deep. Flap is hanging with
bit of skin .
8. An incised wound on the left parietal area measuring
about 6 cm x 1½ cm x bone deep and fracture of
parietal bone present.
9. An incised wound in the centre of the scalp measuring
about 6 cm x 1½ cm x bone deep. Fracture of the left
and right parietal bones seen.
9
10. An incised wound on the right parietal area measuring
about 5 cms x 1 cm x bone deep and fracture of right
parietal bone seen.
Head and neck : Brain injured and neck vessels cut.”
The aforesaid injuries on the body of D-1 were found ante-
mortem in nature. In the opinion of PW-10, D-1 died due to
haemorrhage, shock and injury to neck vessels.
17. On the same day (May 17, 1996) at 1.30 P.M.,
PW-10 conducted post-mortem examination on the body of
D-2. In the post-mortem report (Ex.P-19), he recorded the
following injuries on the body of D-2:
“1. Incised wound on the left leg at the knee joint
measuring about 15 cms x 8 cm x 8 cm deep. Fracture
of patella bone seen.
2. Incised wound 6 cms below wound No.1. measuring
about 10 cm x 3 cm x 4 cms deep. Fracture of
Tibia seen.
3. Incised wound in centre of chest lower part of
sternum measuring about 6 cm x 2 cm x fracture of
sternum and plura is injured.
4. An incised wound between left thumb and the index
finger measuring about 3½ cm x 1½ cm x 1½ cm deep.
5. An incised wound on the nape of the neck measuring
about 5 cm x 1½ cm x 1½ cm deep.
6. An incised wound on the left parietal area measuring
about 5 cm x 1½ cm x scalp deep.
10
7. An incised wound on the posterior part of left
parietal area measuring about 5 cm x 1½ cm x scalp
deep.”
The aforesaid injuries were found ante-mortem in nature.
According to PW-10, D-2 died of haemorrhage, shock and
injury to vital organs.
18. The evidence of PW-10 and post-mortem reports
(Ex.P-18 and Ex.P-19) leave no manner of doubt that the
death of D-1 and D-2 was homicidal.
19. PW-1 is the injured witness. The following injuries
were inflicted on him:
“1. An incised wound in front of left parietal area and
front bone measuring about 7 cm x 1½ cm x bone deep.
(Depressed fracture of the frontal bone as per the specialist
opinion).
2. An incised wound on the left hand above the wrist
measuring about 4 cm x 1 cm x muscles deep. Fracture of
Ulna bone (As per the specialist opinion).
3. An incised wound on the posterior part of the left
parietal area measuring about 6 cm x 1 cm x bone deep,
and cut of the bone.
4. An incised wound by the side of wound No.3, 2 cm
apart measuring about 3 cm x ½ cm x scalp deep.
5. An incised wound on the left hand above wound No.2
measuring about 3 cm x 1 cm x muscle deep.
6. An incised wound on the right wrist measuring about
1½ cm x ½ cm skin deep.
11
7. An incised wound on the anterior part of Right parietal
bone measuring about 2 cm x ¼ cm x skin deep.
8. An incised wound on the anterior part of the left
parietal bone measuring about 3½ cm x ¼ cm x Skin
deep.”
20. K. Danam (PW-11), was posted as Assistant Sub
Inspector of Police at Vemula Police Station at the relevant
time. Having come to know of the incident that two persons
belonging to the Congress Party were done to death at
Gollalaguduru Harijanwada by the Telugu Desam Party
faction, PW-11 immediately rushed to the Government
Hospital, Pulivendula. He found that PW-1 was undergoing
treatment in the emergency ward. As PW-1 was in a fit
condition to give statement, PW-11 recorded his statement
marked Ex.P-1. PW-10 also made an endorsement on Ex.P-
1 that PW-1 was in a fit and proper condition to give a
statement. Based on Ex.P-1, first information report came to
be registered.
21. Mr. P.P. Rao, learned senior counsel appearing
for the appellants vehemently contended that first information
report was a concocted document and that makes the entire
prosecution case doubtful. He would submit that PW-1 was
12
seriously injured and not in a position to give any statement.
In this regard, he referred to the evidence of Dr. A. Sudhakar
Reddy (PW-7), Assistant Professor of Neuro Surgery at
S.V.R.R.G.G. Hospital, Tirupati who treated PW-1. The
learned senior counsel also submitted that at the time of the
recording of statement (Ex.P-1), the group leader Kakarla
Gangj Reddy had already arrived and he was in the room
where PW-1 was being treated. It is the contention of Mr.
P.P. Rao that Kakarla Gangi Reddy was instrumental in
implicating the accused falsely who belonged to rival group.
It was also contended that in the first information report except
naming all the accused and making omnibus allegations, no
specific overt acts of the accused were mentioned.
22. We are unable to accept the submission of the
learned senior counsel that F.I.R. is a concocted document.
It is true that injury no.1 received by PW-1 in front of left
parietal area and the depressed fracture of frontal bone was
extremely grave and serious but on the face of clear,
categorical and unambiguous endorsement made by Dr.T.V.
Raghavendra Reddy (PW-10) that PW-1 was in a fit and proper
condition to give a statement at that time and the fact that
13
PW-11 recorded the statement of PW-1 in the presence of
PW-10, there cannot be even slightest doubt about the
authenticity of Ex.P-1 and we find no justifiable reason to even
remotely conclude that Ex.P-1 is not the statement given
by PW-1. The contention that PW-11 is a chance witness, is
noted to be rejected. Pertinently, the F.I.R. was forwarded to
the Magistrate without any delay. As a matter of fact, F.I.R.
reached the Magistrate at 10.45 P.M. on May 16, 1996 itself.
As to whether PW-1 was in a fit and proper condition to give
statement or not, could have been assessed by PW-10 under
whose treatment PW-1 was at that time and none else. The
evidence of PW-7 referred to by the learned senior counsel in
no way creates any doubt about the correctness of
statement of PW-10 as PW-7 has not stated in definite terms
that PW-1 was not in a fit state of condition to give statement
at that time. The trial court as well as the High Court did not
accept the contention made on behalf of the accused that
Ex.P-1 was fabricated. We agree with this view of the trial
court and the High Court.
23. PW-1 in his testimony before the court has given
account of the incident. He testified that A-1, A-2, A-10 and
14
A-12 were armed with axes and remaining eleven accused
were armed with eathapululu (sickle). A-1 to A-9 hacked D-1
with their weapons. A-3, A-6, A-7, A-10 to A-13 hacked D-2
with their respective weapons. A-1, A-3, A-6, A-7 and A-10 to
A-13 hacked him with their respective weapons. A-7, A-9, A-10
and A-14 hacked PW-3 and R. Narayanareddy with their
respective weapons. D-1 and D-2 died on the spot. In his
cross-examination, he admitted that he did not state in Ex.P-1
that they (PW-1 and D-1) obtained loan of Rs.6,000/- from the
bank. He also admitted in Ex.P-1 that he did not state that
A-1, A-2, A-10 and A-12 were armed with axes and the
remaining accused with eathapululu (sickle). He also admitted
that he did not state in Ex.P-1 that A-1 to A-9 hacked D-1; A-
3, A-6, A-10 to A-13 hacked D-2 and that he was attacked by
A-1, A-3, A-6, A-7, A-10 to A-13 and that A-7, A-9, A-10 and
A-14 attacked PW-3 and R. Narayanareddy. These
omissions do not affect the credibility of his evidence since at
the time of recording of Ex.P-1, PW-1 was in injured condition.
It was not expected of him to give a detailed version in that
condition, more so when so many accused were involved. But
despite that, in Ex.P-1, he has given names of all the accused
15
persons. 24. The testimony of PW-1 is corroborated
by medical evidence. The factum of PW-1 and D-1 having
gone to the Bank at Pulivendula and that they obtained a loan
of Rs.6,000/- from Alavalapadu Grameena Bank is also
established by the evidence of R.B.S.K. Satyamurthy (PW-5)
and M. Venkata Subbareddy (PW-6). PW-5 and PW-6 were
Branch Manager and Clerk-cum-Cashier respectively in the
Bank at the relevant time. The evidence of driver of the jeep
A. Krishnaiah (PW-2), although declared hostile as he refused
to recognize the assailants, corroborates the evidence of PW-
1 to the extent that they had gone to the Bank at Pulivendula
and that they were returning from that place on May 16, 1996
at 11.00 A.M.
25. A. Jaganmohan Reddy (PW-3) is yet another eye-
witness. He also got injured in the incident. He has given
detailed version of the incident. He has testified that A-1 to
A-9 hacked D-1 and A-3, A-6, A-7, and A-10 to A-13 hacked
D-2 with their weapons. He also testified that A-3, A-6, A-7
and A-10 to A-13 hacked PW-1 causing various injuries to him
and A-7 and A-10 hacked him on his left forearm and left
thigh. PW-10 examined PW-3 at about 3.45 P.M. on May 16,
16
1996 and found two incised injuries on the left hand and left
thigh. The injury report pertaining to him is Ex.P-16.
26. PW-1 and PW-3 are injured witnesses. As a
matter of fact, PW-1 suffered a grave injury on his head. Two
of their family members died. Why should he and PW-3 let
real culprits go scot-free ? It is most unlikely that they would
have spared the actual assailants and falsely implicated
these appellants merely because there is political rivalry
between them. The omissions and discrepancies pointed out
in the evidence of PW-1 and PW-3 are only minor and do not
shake their trustworthiness. It is true that neither PW-1 nor
PW-3 assigned specific injuries or specific overt acts attributed
to the accused individually but looking to the nature of the
incident where large number of persons attacked D-1, D-2
PW-1, PW-2 and PW-3, it would not have been possible
for PW-1 or PW-3 to attribute specific injury individually to
each accused. How could it be possible for any person to
recount with meticulous exactitude the various individual
acts done by each assailant ? Had they stated so, their
testimony would have been criticized as highly improbable
and unnatural. The testimony of eye-witnesses carries with it
17
the criticism of being tutored if they give graphic details of
the incident and their evidence would be assailed as
unspecific, vague and general if they fail to speak with
precision. The golden principle is not to weigh such testimony
in golden scales but to view it from the cogent standards that
lend assurance about its trustfulness. In our view, the
testimony of PW-1 and PW-3 is of credence and does not
deserve to be discarded on the ground of non-mentioning of
specific overt acts. The trial court and the High Court have
given cogent and convincing reasons for accepting the
evidence of PW-1 and PW-3. We concur. Merely because
A-14 and A-15 got acquittal, in our view, credibility of deposition
of PW-1 and PW-3 is not affected.
27. Mr. P.P. Rao, learned senior counsel submitted
that the conviction and sentence passed against the accused-
appellants for the offence under Section 302, IPC, simpliciter is
not legally sustainable in the absence of any specific overt
acts attributed to each of the accused. The learned senior
counsel would submit that the accused who inflicted fatal
injury/injuries resulting in the death with the requisite
intention or knowledge alone are liable for the offence under
18
Section 302, IPC simpliciter. The learned senior counsel
contended that as there is no conviction for the offence
under Section 302 read with Section 149, IPC, the question
whether such conviction is maintainable or not without such
charge does not arise in the present case. Placing reliance
upon a decision of this Court in Pandurang,Tukia and Bhillia
1
vs. The State of Hyderabad , learned senior counsel would
submit that in absence of specific charge under Section 149,
the accused persons cannot be convicted under Section 302
read with Section 149 as Section 149 creates a distinct and
separate offence. The learned senior counsel also relied
2
upon Suraj Pal vs. The State of Uttar Pradesh , Nayan Ullah
3 4
and Ors. Vs. Emperor , Tahsildar Singh vs. State and
5
Nanak Chand vs . The State of Punjab .
28. Learned senior counsel for the appellants also
contended that in the instant case there is no charge under
Section 149, IPC at all nor any finding of the courts below that
the accused had the common object to commit the offence
under Section 302, IPC. He submitted that barring one injury
1
(1955) 1 SCR 1083
2
(1955) 1 SCR 1332
3
A.I.R. 1925 Calcutta 903
4
A.I.R. 1958 Allahabad 255
5
(1955) 1 SCR 1201
19
in the case of D-1 and two injuries in the case of D-2, none of
the other injuries was found to be fatal and, therefore, the
common object at the most could be only to cause some
injury but not to cause the fatal injuries. In support of this
contention of his, the learned senior counsel relied upon
6
Shambhu Nath Singh and Ors. Vs. State of Bihar ; Bhajan
7
Singh And Ors. Vs . The State of Punjab and Ram Anjore And
8
Ors. Vs. State of Uttar Pradesh .
29. Mr.D. Rama Krishna Reddy, learned counsel for
the State in his reply submitted that in the complaint (Ex.P-1),
the names of all the accused persons, weapons wielded by
them and their participation have been clearly mentioned. In
their deposition, PW-1 and PW-3 have also stated which of
the accused attacked D-1, D-2 and injured PW-1, PW-2 and
PW-3 and, therefore, non-attributing the injuries specifically
to the individual accused does not materially affect the
prosecution case. He would urge that the accused-
appellants have been convicted for the offences under Sections
148 and 307 read with Section 149 and Section 302 IPC
6
AIR 1960 SC 725
7
(1978) 4 SCC 77
8
(1975) 3 SCC 379
20
simpliciter which would show that the accused formed unlawful
assembly. The learned counsel invited our attention to
Section 464 of the Code of Criminal Procedure and submitted
that in the present case, neither in the grounds of appeal
before this Court nor before the courts below the accused
have pleaded prejudice or failure of justice due to non-
mentioning of Section 149 IPC with Section 302 IPC. He
9
relied upon: Willie (William) Slaney Vs. The State of M.P . ;
10
Bhoor Singh And Anr. Vs. State of Punjab ; Karnam Ram
11
Narsaiah & Ors. Vs . State of A.P. and Dumpala Chandra
12
Reddy Vs. Nimakayala Balireddy And Ors. a nd Malhu Yadav
13
And Ors. Vs. State of Bihar and Umesh Singh And Anr . Vs.
14
State of Bihar ,
30. In Suraj Pal, this Court held:
“…Whether or not Section 149 IPC creates a distinct
offence (as regards which there has been conflict of views
in the High Courts), there can be no doubt that it creates a
distinct head of criminal liability which has come to be known
as “constructive liability”—a convenient phrase not used in
the Indian Penal Code. There can, therefore, be no doubt
that the direct individual liability of a person can only be fixed
upon him with reference to a specific charge in respect of
the particular offence. Such a case is not covered by
9
(1955) 2 SCR 1140
10
(1974) 4 SCC 754
11
(2005)10 SCC 629
12
(2008) 8 SCC 339
13
(2002) 5 SCC 724
14
(2000) 6 SCC 89
21
Sections 236 and 237 of the Criminal Procedure Code. The
framing of a specific and distinct charge in respect of
every distinct head of criminal liability constituting an
offence, is the foundation for a conviction and sentence
therefore. The absence, therefore, of specific charges
against the appellant under Sections 307 and 302 IPC in
respect of which he has been sentenced to transportation
for life and to death respectively, is a very serious lacuna in
the proceedings insofar as it concerns him. The question
then which arises for consideration is whether or not this
lacuna has prejudiced him his trial.”
31. In Pandurang , it was observed:
“……Several persons can simultaneously attack a man
and each can have the same intention, namely the intention
to kill, and each can individually inflict a separate fatal blow
and yet none would have the common intention required by
the section because there was no prior meeting of minds to
form a pre-arranged plan. In a case like that, each would
be individually liable for whatever injury he caused but none
could be vicariously convicted for the act of any of the
others; and if the prosecution cannot prove that his
separate blow was a fatal one he cannot be convicted of the
murder….”
32. In the case of Nanak Chand , this Court stated:
“…There is a clear distinction between the provisions of
sections 34 and 149 of the Indian Penal Code and the two
sections are not to be confused . The principal element in
section 34 of the Indian Penal Code is the common intention
to commit a crime. In furtherance of the common intention
several acts may be done by several persons resulting in
the commission of that crime. In such a situation section
34 provides that each one of them would be liable for that
crime in the same manner as if all the acts resulting in that
crime had been done by him alone. There is no question
of common intention in section 149 of the Indian Penal
Code. An offence may be committed by a member of an
unlawful assembly and the other members will be liable for
22
that offence although there was no common intention
between that person and other members of the unlawful
assembly to commit that offence provided the conditions
laid down in the section are fulfilled. Thus if the offence
committed by that person is in prosecution of the common
object of the unlawful assembly or such as the members of
that assembly knew to be likely to be committed in
prosecution of the common object, every member of the
unlawful assembly would be guilty of that offence,
although there may have been no common intention and no
participation by the other members in the actual
commission of that offence……………………………………
………………………..
After an examination of the case referred to on behalf of
the appellant and the prosecution we are of the opinion that
the view taken by the Calcutta High Court is the correct
view namely, that a person charged with an offence read
with section 149 cannot be convicted of the substantive
offence without a specific charge being framed as required
by section 233 of the Code of Criminal Procedure.”
33. In Umesh Singh while dealing with Section 149
IPC, this Court held:
“ Vicarious liability, we may state, as rightly contended for
the State by Shri B.B. Singh relying upon the decisions of
this Court in Shamshul Kanwar v. State of U.P.,(1995) 4
SCC 430, and Bhajan Singh v. State of U.P., (1974) 4 SCC
568, extends to members of the unlawful assembly only in
respect of acts done in pursuance of the common object of
the unlawful assembly or such offences as the members of
the unlawful assembly are likely to commit in the execution
of that common object. An accused whose case falls within
the terms of Section 149 IPC as aforesaid cannot put
forward the defence that he did not with his own hand
commit the offence committed in prosecution of the common
object of the unlawful assembly or such as the members of
the assembly knew to be likely to be committed in
prosecution of that object. Everyone must be taken to have
intended the probable and natural results of the combination
of the acts in which he had joined. It is not necessary in all
cases that all the persons forming an unlawful assembly
must do some overt act. Where the accused had assembled
23
together, armed with guns and lathis, and were parties to the
assault on the deceased and others, the prosecution is not
obliged to prove which specific overt act was done by which
of the accused. Indeed the provisions of Section 149 IPC, if
properly analysed will make it clear that it takes an accused
out of the region of abetment and makes him responsible as
a principal for the acts of each and all merely because he is
a member of an unlawful assembly. We may also notice that
under this provision, the liability of the other members for the
offence committed during the continuance of the occurrence
rests upon the fact whether the other members knew
beforehand that the offence actually committed was likely to
be committed in prosecution of the common object. Such
knowledge can reasonably be intended from the nature of
the assembly, arms or behaviour, at or before the scene of
action. If such knowledge may not reasonably be attributed
to the other members of the assembly then their liability for
the offence committed during the occurrence does not arise.
Tested on this touchstone, we may safely say that in the
present case when the appellants were members of an
unlawful assembly which was armed with lathis and guns
and a declaration had been made that in the event there is
any resistance to the taking away of the paddy which is
stated to have been the original object, they were willing to
take the life of the deceased and take away the paddy. If
that is the position, it is futile to contend for the appellants
that their conviction is in any way bad.”
34. Section 464 of Code of Criminal Procedure
reads:
“ 464. Effect of omission to frame, or absence of, or
error in, charge .—(1) No finding sentence or order by a
Court of competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge
including any misjoinder of charge, unless, in the opinion of
the Court of appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of
opinion that a failure of justice has in fact been
occasioned, it may –
(a) in the case of an omission to frame a charge,
order that a charge be framed and that the
24
trial be recommended from the point
immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon
a charge framed in whatever manner it thinks
fit.
Provided that if the Court is of opinion that the facts of
the case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction.”
35.
We deem it appropriate at this stage to
refer to the charges framed against the accused
by the trial court:
“ Charge No.1. That you A-1 to A-13 on or about 16-5-1996
in the morning near Gollalaguduru Harijanawada were
members of an unlawful assembly and did, in prosecution of
the common object of such assembly viz., in murdering the
deceased, 1 and 2 commit the offence of rioting with a
deadly weapon to wit axes and Eethapululu and that that
you thereby committed an offence punishable under
Section 148 I.P.C. and within my cognizance.
Charge No.2. That you A-1 to A-13 on or about the same
day, time, place and during the course of the same
transaction as mentioned in charge No.1 above, wrongfully
restraint LWs-1 to 4 Annareddi Bala Gangireddi, Annareddi
Jagan Mohanreddi, Ramireddi Narayanareddi and Ala
Krishnaiah and later the deceased 1 and 2 thereby
committed an offence punishable under Section 341 I.P.C.
and within my cognizance.
Charge No.3. That you A-1 to A-13 on or about the same
day, time, place and during the course of the same
transaction as mentioned in charge No.1 above, voluntarily
caused grievous hurt to LWs-1 to 4 Annareddi Bala
Gangireddi, Annareddi Jagan Mohanreddi, Ramireddi
Narayanareddi and Ali Krishnaiah by means of axes and
Eethapululu and that you thereby committed an offence
punishable under Section 326 I.P.C. and within my
cognizance.
25
Charge No.4. That you A-1 to A-5 and A-6 to A-9, on or
about the same day, time, place and during the course of
the same transaction as mentioned in charge No.1 above,
did commit murder by intentionally causing the death of
Annareddi Sivaraeddi (deceased No.1) and that you
thereby committed an offence punishable under Section
302 I.P.C. and within my cognizance.
Charge No.5. That you A-3, A-6 to A-8, A-10 to A-13 on or
about the same day, time, place and during the course of
the same transaction as mentioned in the charge No.1
above, did commit murder by intentionally causing the death
of Yerramireddi Pullareddi (deceased No.2) and that you
thereby committed an offence punishable under Section 302
I.P.C. and within my cognizance.
Charge No.6. That you A-1, A-3, A-6 to A-8, A-10, A-12
and A-13 on or about the same day, time, place and during
the course of the same transaction as mentioned in charge
No.1 above, did an act to wit to murder with such intention
and under such circumstances, that if by that act you had
caused the death of Annareddi Bala Gangi Reddi (LW-1)
you would have been guilty of murder and that you caused
hurt to the said Annareddi Bala Gangireddi (LW-1) by the
said act and that you thereby committed an offence
punishable under Section 307 I.P.C. and within my
cognizance.
Charge No.7. That you A-7, A-9 and A-10 on or about the
same day time and place during the course of the same
transaction as mentioned in charge No.1 above, did an act
to wit attempt to murder with such intention and under such
circumstances, that if by that act you had caused the death
of Ramireddi Narayana Reddi, you would have been guilt of
murder and that you caused hurt to the said Ramireddi
Narayanareddi LW-3 by the said act, and that you thereby
committed an offence punishable under Section 307 I.P.C.
and within my cognizance.
Charge No.8. That you A-2, A-4, A-5 and A-11 on or
about the same day, time, place and during the course of
the same transaction as mentioned in charge No.1 above,
were members of an unlawful assembly and in prosecution
of the common object of which viz., in attacking the
prosecution witnesses some of the members i.e., A-1, A-3,
A-6 to A-10 and A-12 and A-13 caused the death of the
deceased attempt to murder the witnesses and that you are
thereby under section 149 I.P.C. guilty of causing the said
offence, an offence punishable under Section 307 I.P.C.
and within my cognizance.”
26
36. Section 149, IPC creates constructive liability i.e. a
person who is a member of an unlawful assembly is made
guilty of the offence committed by another member of the
same assembly in the circumstances mentioned in the Section,
although he may have had no intention to commit that offence
and had done no overt act except his presence in the assembly
and sharing the common object of that assembly.
37. Some divergence between two decisions of this
Court in Nanak Chand and Suraj Pal seems to have been
noticed and matter was referred to the Constitution Bench in
Willie (William) Slaney. Although Willie (William) Slaney was
not a case under Section 149 of the Indian Penal Code and
the charge against the accused therein was under Section 302
read with Section 34 IPC but the Constitution Bench
considered the question whether the omission to frame an
alternative charge under Section 302 IPC is an illegality that
cuts at the root of conviction. Vivian Bose, J. considered
Sections 221 to 223, 225, 226, 227, 228, 232, 233, 234, 235,
27
236, 237, 238, 535 and 537 of the Code of Criminal Procedure,
1898 and observed:
“29. We do not agree with either view. In our opinion, the
cases contemplated by Section 237 are just as much a
departure from Section 233 as are those envisaged in
Sections 225, 226, 227, 228, 535 and 537. Sections 236,
237 and 238 deal with joinder of charges and so does
Section 233. The first condition is that there shall be a
separate charge for each offence and the second is that
each charge must be tried separately except in the cases
mentioned in Sections 234, 235 and 236. It is to be
observed that the exceptions are confined to the rule about
joinder of charges and that no exception is made to that part
of the rule that requires separate charges for each offence.
It will be seen that though Sections 234, 235 and 236 are
expressly mentioned, Section 237 is not referred to, nor is
Section 238. Therefore, so far as Section 233 is concerned,
there can be no doubt that it requires a separate charge for
each offence and does not envisage a situation in which
there is either no charge at all or where, there being a
charge for some other offence of which the accused is
acquitted, he can be convicted instead of something else for
which he was not charged. We are unable to hold that the
Code regards Sections 237 and 238 as part of the normal
procedure.”
38. Vivian Bose, J. went on to observe :
“44. In adjudging the question of prejudice the fact that the
absence of a charge, or a substantial mistake in it, is a
serious lacuna will naturally operate to the benefit of the
accused and if there is any reasonable and substantial
doubt about whether he was, or was reasonably likely to
have been, misled in the circumstances of any particular
case, he is as much entitled to the benefit of it here as
elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of it,
is not disclosed the conviction must stand; also it will
always be material to consider whether objection to the
nature of the charge, or a total want of one, was taken at
an early stage. If it was not, and particularly where the
accused is defended by counsel ( Atta Mohammad v. King-
Emperor) {(1929) LR 57 IA 71,74} it may in a given case
be proper to conclude that the accused was satisfied and
knew just what he was being tried for and knew what was
being alleged against him and wanted no further
particulars, provided it is always borne in mind that “no
28
serious defect in the mode of conducting a criminal trial
can be justified or cured by the consent of the advocate of
the accused” ( Abdul Rahman v. King-Emperor ) {(1926) LR
54 IA 96,104,110}. But these are matters of fact which will
be special to each different case and no conclusion on
these questions of fact in any one case can ever be
regarded as a precedent or a guide for a conclusion of fact
in another, because the facts can never be alike in any two
cases “however” alike they may seem. There is no such
thing as a judicial precedent on facts though counsel, and
even Judges, are sometimes prone to argue and to act as
if there were.”
39. In his concurring judgment, Chandrasekhara Aiyar,
J. also surveyed the relevant provisions of the Code of
Criminal Procedure, 1898 and held:
“76. A case of complete absence of a charge is covered
by Section 535, whereas an error or omission in a charge
is dealt with by Section 537. The consequences seem to
be slightly different. Where there is no charge, it is for the
court to determine whether there is any failure of justice.
But in the latter, where there is mere error or omission in
the charge, the court is also bound to have regard to the
fact whether the objection could and should have been
raised at an earlier stage in the proceedings.
77. The sections referred to indicate that in the generality
of cases the omission to frame a charge is not per se fatal.
We are unable, therefore, to accept as sound the very
broad proposition advanced for the appellants by Mr
Umrigar that where there is no charge, the conviction
would be illegal, prejudice or no prejudice. On the other
hand, it is suggested that the wording of Section 535 of the
Code of Criminal Procedure is sufficiently wide to cover
every case of no charge. It is said that it applies also to the
case of a trial in which there has been no charge of any
kind even from the very outset. We are unable to agree
that Section 535 of the Code of Criminal Procedure is to
be construed in such an unlimited sense. It may be noticed
that this group of sections relating to absence of a charge,
namely, Sections 225, 226 and 232 and the powers
exercisable thereunder, are with reference to a trial which
has already commenced or taken place. They would,
therefore, normally relate to errors of omissions which
occur in a trial that has validly commenced. There is no
29
reason to think that Section 535 of the Code of Criminal
Procedure is not also to be understood with reference to
the same context. There may be cases where, a trial which
proceeds without any kind of charge at the outset can be
said to be a trial wholly contrary to what is prescribed by
the Code. In such cases, the trial would be illegal without
the necessity of a positive finding of prejudice. By way of
illustration the following classes of cases may be
mentioned: ( a ) Where there is no charge at all as required
by the Code from start to finish — from the Committing
Magistrate’s court to the end of the Sessions trial; the
Code contemplates in Section 226 the possibility of a
committal without any charge and it is not impossible to
conceive of an extreme case where the Sessions trial also
proceeds without any formal charge which has to be in
writing and read out and explained to the accused (Section
210(2) and Section 251( A )(4) and Section 227). The Code
requires that there should be a charge and it should be in
writing. A deliberate breach of this basic requirement
cannot be cured by the assertion that everything was orally
explained to the accused and the assessors or jurors, and
there was no possible or probable prejudice, ( b ) Where the
conviction is for a totally different offence from the one
charged and not covered by Sections 236 and 237 of the
Code. On a charge for a minor offence, there can be no
conviction for a major offence, e.g., grievous hurt or rioting
and murder. The omission to frame a separate and
specific charge in such cases will be an incurable
irregularity amounting to an illegality.
78. Sections 34, 114 and 149 of the Indian Penal Code
provide for criminal liability viewed from different angles as
regards actual participants, accessories and men actuated
by a common object or a common intention; and the
charge is a rolled-up one involving the direct liability and
the constructive liability without specifying who are directly
liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or
other of the various heads of criminal liability for the
offence cannot be said to be fatal by itself, and before a
conviction for the substantive offence, without a charge
can be set aside, prejudice will have to be made out. In
most of the cases of this kind, evidence is normally given
from the outset as to who was primarily responsible for the
act which brought about the offence and such evidence is
of course relevant.
79. After all, in our considering whether the defect is illegal
or merely irregular, we shall have to take into account
30
several factors, such as the form and the language of the
mandatory provisions, the scheme and the object to be
achieved, the nature of the violation, etc. Dealing with the
question whether a provision in a statute is mandatory or
directory, Lord Penzance observed in Howard v.
Bodington. {(1877) 2 PD 203} “There may be many
provisions in Acts of Parliament which, although they are
not strictly obeyed, yet do not appear to the court to be of
that material importance to the subject-matter to which
they refer, as that the legislature could have intended that
the non-observance of them should be followed by a total
failure of the whole proceedings. On the other hand, there
are some provisions in respect of which the court would
take an opposite view, and would feel that they are matters
which must be strictly obeyed, otherwise the whole
proceedings that subsequently follow must come to an
end.” These words can be applied mutatis mutandis to
cases where there is no charge at all. The gravity of the
defect will have to be considered to determine if it falls
within one class or the other. Is it a mere unimportant
mistake in procedure or is it substantial and vital? The
answer will depend largely on the facts and circumstances
of each case. If it is so grave that prejudice will necessarily
be implied or imported, it may be described as an illegality.
If the seriousness of the omission is of a lesser degree, it
will be an irregularity and prejudice by way of failure of
justice will have to be established.”
40. Chandrasekhara Aiyar, J. however, put a note of
caution to subordinate Courts:
“80. This judgment should not be understood by the
subordinate courts as sanctioning a deliberate
disobedience to the mandatory requirements of the Code,
or as giving any licence to proceed with trials without an
appropriate charge. The omission to frame a charge is a
grave defect and should be vigilantly guarded against. In
some cases, it may be so serious that by itself it would
vitiate a trial and render it illegal, prejudice to the accused
being taken for granted. In the main, the provisions of
Section 535 would apply to cases of inadvertence to frame
a charge induced by the belief that the matter on record is
sufficient to warrant the conviction for a particular offence
without express specification, and where the facts proved
by the prosecution constitute separate and distinct offence
but closely relevant to and springing out of the same set of
facts connected with the one charged.”
31
41. Willie (William) Slaney thus holds: that where the
charge is rolled-up one involving the direct liability and the
constructive liability without specifying who are directly liable
and who are sought to be made constructively liable, in such
a situation, the absence of a charge under one or other or the
various heads of criminal liability for the offence cannot be
said to be fatal by itself, and before a conviction for the
substantive offence, without a charge can be set aside,
prejudice will have to be made out.
42. The aforesaid legal position holds good after
enactment of the Code of Criminal Procedure, 1973 as well
in the light of Sections 215, 216, 218, 221 and 464 contained
therein. In unmistakable terms, Section 464 specifies that
a finding or sentence of a court shall not be set aside merely
on the ground that a charge was not framed or that charge
was defective unless it has occasioned in prejudice.
Because of a mere defect in language or in the narration or
in form of the charge, the conviction would not be rendered
bad if accused has not been adversely affected thereby. If
the ingredients of the section are obvious or implicit,
conviction in regard thereto can be sustained irrespective of
32
the fact that the said section has not been mentioned. A
fair trial to the accused is a sine quo non in our criminal
justice system but at the same time procedural law contained
in the Code of Criminal Procedure is designed to further the
ends of justice and not to frustrate them by introduction of
hyper-technicalities. Every case must depend on its own
merits and no straightjacket formula can be applied; the
essential and important aspect to be kept in mind is: has
omission to frame a specific charge resulted in prejudice to
the accused.
43. Coming now to the facts of the present case; all
the accused were put to notice under charge no. 1 that on
May 16, 1996 in the morning near Gollalaguduru
Harijanawada, they were members of an unlawful assembly
armed with deadly weapons and in prosecution of common
object of such assembly, namely, in murdering deceased 1
and 2, they committed offence of rioting, punishable under
section 148 IPC. A-1 to A-5 and A-6 to A-9 were noticed
of the particulars under charge no.4 that during the course
of same transaction as mentioned in charge no. 1, they
committed murder by intentional causing death of D-1 and
33
thereby committed an offence punishable under Section 302
IPC. A-3, A-6 to A-8, A-10 to A-13 were put to notice under
charge no.5 that during the course of the same transaction
as mentioned in charge no. 1 they committed murder by
intentional causing death of D-2 and thereby committed an
offence punishable under Section 302 IPC.
44. A careful reading of charge no. 4 and charge no.
5 leaves no manner of doubt, since the transaction
mentioned in charge no.1 has been made integral part thereof,
that all the necessary ingredients of Section 149 IPC are
implicit therein except mentioning of Section 149 IPC
specifically. The particulars stated in charge no. 4 and 5 are
reasonably sufficient to give the appellants adequate notice of
Section 149 IPC although not specifically mentioned. Is non-
mentioning of Section 149 in charge no. 4 and charge no. 5 a
fundamental defect of an incurable illegality that may warrant
setting aside the conviction and sentence of the appellants ?
We do not think so. Non-framing of a charge under section
149 IPC, on the face of the charges framed against the
appellants would not vitiate their conviction; more so when the
accused have failed to show any prejudice in this regard. The
34
present case is a case where there is mere omission to
mention Section 149 in charge no. 4 and 5 which at the highest
may be considered as an irregularity and since the appellants
have failed to show any prejudice, their conviction and
sentence is not at all affected. Tenor of cross-examination of
PW-1 and PW-3 by the defence also rules out any prejudice to
them. The offence, in the established facts and circumstances
of the case, under Section 302 read with section 149 IPC is
implicit and applying the dictum laid down by the Constitution
Bench of this Court in Willie (William) Slaney, the omission to
mention Section 149 IPC specifically in the charge no. 4 and 5
cannot affect their conviction. In no way their conviction is
rendered bad as the appellants had assembled together
armed with axes and eathapululu (sickle) and were parties to
the assault on D-1 and D-2 and others. In a situation such as
this it was not obligatory upon the prosecution to prove which
specific overt act was done by which of the accused.
45. The submission of the learned senior counsel for
the appellants that since D-1 and D-2 received only one and
two fatal injuries respectively, the common object at the most
could be to cause injuries and not fatal injuries hardly merits
35
acceptance. The deadly weapons with which appellants
were armed, the number of injuries inflicted on D-1 and D-2,
and the murderous assault lead to a certain inference that the
appellants shared common object of committing murder with
other accused. That they were more than five and formed
unlawful assembly is beyond doubt. D-1 and D-2 died on the
spot. PW-1 fortunately survived after surgery and
hospitalization for more than month.
46. For the above reasons, the appeal must fail and is
dismissed.
………………….J
(D.K. Jain)
………………….J
(R.M. Lodha)
New Delhi,
April 21, 2009
36