Full Judgment Text
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PETITIONER:
KOMMA NEELAKANTHA REDDY & ORS.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT16/02/1978
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1978 AIR 1021 1978 SCR (3) 75
1978 SCC (2) 473
ACT:
Eye witness--Reliability of witness--Eye witnesses who were
Police-men specially posted due to strained relations
between the two factions, making the F.I.R. Ex. P 2 when
the party of the deceased refused to make a report, but
making a statement in a departmental enquiry against them
for dereliction of duty, that they arrived at the place of
incident after everything was over.
Penal Code (Act 45 of 1860), 1860 Sections 141, 149,
151--Scope of.
HEADNOTE:
Twenty five persons were charged with offences under various
sections of I,P.C. on the basis of first information report
No. Ex. P 2 filed by PWs. 1 and 2. PWs. 1, 2 and 3, the eye
witnesses, were members of Police Party specially posted at
the place of incident due to the strained relations between
the party of the accused and the party of the deceased. The
F.I.R. was drawn up and filed by them as the party of the
deceased refused to make a report. The first information
report stated, (a) that the party of the deceased went upto
the terrace of the house of Subbi Reddy and challenged the
party of the accused to a fight, whereupon the party of the
accused came to the terrace of the house of. one Somi Reddy
which was at some distance from the house of Subbi Reddy,
(b) that A2, A4, A6 and A9 were armed with guns and as a
result of their firing at the party of the deceased several
persons received gun-shot injuries of whom Ramakrishna Reddy
succumbed to his injury and (c) that the policemen tried to
apprehend the accused but they ran away. The Additional
Sessions Judge, Cuddapah, who did not find it possible to
place reliance on the evidence of the prosecution witnesses,
acquitted the accused by his judgment dt. April 21, 1971.
An appeal was filed against the acquittal. Al and A2 died
during the appeal. The High Court relied on the testimony
of PWs. 1 to 3 set "id, the judgment in respect of the
acquittal of A 3 to A 9, A 11, A 12, A 13 and A 19 ’but
confirmed the acquittal of the rest. Hence this appeal. It
was contended that in view of the contrary statements made
by PWs. 1 to 3 in the departmental enquiry against them for
dereliction of duty, they falsely claimed to be the eye
witnesses and therefore the conviction could not be
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sustained.
Dismissing the appeals of A 4, A 6, A 9 and allowing the
appeals of the rest the court,
HELD : 1. The High Court rightly took the view that all the
three policemen were present at the time of the incident and
witnessed it, and that the statements given by them in the
departmental inquiry against them for dereliction of duty
were for the purpose of avoiding an adverse finding in the,
inquiry. One tell-tale fact which was taken into
consideration was the injury received by PW 3 when both
sides were throwing stones at each other. [78E-F]
2. The High Court did not misread the evidence inasmuch as
it has taken note of the fact that PW 1 was a local
constable who was stationed in village Kasanur not only for
the occasion which led to the present incident, but also on
earlier occasions including service of summonses, and
therefore had opportunity of knowing the names of the
accused. It was therefore rightly held that A 2, A 4, A 6
and A 9 had fired their guns resulting in the death of
Ramakrishna Reddy and injuries to several prosecution
witnesses. [78D, E, H]
3. Section 149 I.P.C. provides that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly or such as
the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who,
at the time of the committing of ’that offence, is a member
of the same assembly, is guilty of that offence.
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"Unlawful assembly" has been definded in section 141 I.P.C.,
while s. 142 states. who can be said to be its member. An
unlawful assembly is thus an assembly of five or more,
persons if the common object of the persons composing it is
of the nature specified in items first to fifth of the
section. It cannot be urged that any item other than that
part of the third item which relates to "other offence"
could possibly be attracted to the present case. [79B-D]
(b) An offence will fall within the purview of s. 149
I.P.C. even if the members of the assembly knew that it was
"likely to be committed" in prosecution of their common
object or if the offence was such as the members of that
assembly knew to be likely to be committed in prosecution of
that object. ’Mere is nothing in the statements of the
three police witnesses to prove that this was so. Section
149 I.P.C. will not therefore fasten criminal liability on
the other accused. [80G-H]
(c) From the evidence of PWs. 1 to 3 it is not possible to
reach the conclusion that the other accused (other than A 2,
A 4, A 6, A 9) were armed with spears or that they went up
the terrace with the common object of committing any
offence. On the other hand the statements of PWs. 4 and 6
showed that the party of the accused did not go to their
terrace of their own accord for committing any offence. A
2, A 4, A 6 and A 9 were armed with guns and fired them some
time thereafter, but there was nothing in the evidence of
PWs. 1 to 3 to show that they did so in pursuance of the
common object of the other persons who were on the terrace
at that time. Under the explanation to S. 141 an assembly
which was not unlawful when assembled may subsequently
become an unlawful assembly, but there, was nothing in the
evidence of the three police witnesses to show that this was
so or that the other accused exhorted those who fired the
guns or knew that the gun would be, fired. There was also
nothing to show that the other accused knew that the guns
were likely to be fired in prosecution of their common
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object. [80A, E-F]
4. Section 151 would be attracted only if there was
evidence to show that the assembly had been "lawfully
commanded to dispense". There is nothing in the statement
of the three police witnesses to show that they gave any
such command. They have merely stated that they warned the
two factions who were pelting stones, and none of them has
stated that any command for dispersal was en by any of
them. The High Court therefore erred in invoking sec. 151
I.P.C. for the purpose of convicting the other accused with
the aid of section 149 I.P.C. [81A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 224
of 1973.
(From the Judgment and Order dated 3-8-1973 of the Andhra
Pradesh High Court in Crl. A. No. 561 of 1971.)
P. Basi Reddy, and A. V. V. Nair, for the appellants.
P. Parmeswara Rao, and T. V. Narasimhachari, for the
respondent.
The Judgment of the Court was delivered by
SHINGHAL. J., This appeal by the accused is directed against
the judgment of the High Court of Andhra Pradesh dated
August 3, 1973, by which their acquittal has been set aside
and they have been convicted and sentenced for the
commission of various offences. Both the courts have
referred to the accused and the prosecution witnesses with
reference to their serial numbers, and as arguments before
us
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have also been advanced with reference to those numbers, it
will be convenient to adhere to that method of describing
them.
The incident which has given rise to this appeal relates to
village Kasanur, within the jurisdiction of Simhadripuram
police station in Pulivendla taluk of Cuddapah district. It
is alleged that there was long standing enmity between the
group of the accused led by A-1, and the group of the
prosecution witnesses led by Harishchandra Reddy. The High
Court has mentioned the cause of the enmity and the disputes
which preceded the present incident. It is alleged that on
the morning of January 11, 1970, deceased Ramkrishna Reddy
and P.W. 16 went to Simhadripuram to make some purchases and
were beaten up by A-6, and A-21. They returned to Kasanur
some time thereafter. At about 4 p.m. while P.Ws. 6, 7, 8,
9, 10, 11, 12 and 13 were standing at the house of Subbi
Reddy, the deceased went there and reported that
incident.P.W. 5 also came running there and intimated that
he had been chased by the members of the other party who
were armed with spears and guns. All of them then went up
the terrace of the house of Subbi Reddy and challenged the
other party i.e. the party of the accused) to a fight. The
accused came to the terrace of the house of one Somi Reddy
which was at some distance from the house of Subbi Reddy.
A-2, A-4, A-6 and A-9 were armed with guns and the other
accused were armed with spears. Both sides indulged in
throwing stones at each other. It so happened that in those
days a police party had been stationed in the village be-
cause of the strained relations between the two factions.
P.Ws. 1, 2 and 3 were members of the police party. They had
received intimation from P.W. 21, who was the village
Munsif, about the likelihood of a breach of the peace and
dispatched report Ex. P.1 to police station Simhadripuram
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for obtaining reinforcement. In the mean time, the three
policemen reached the place of the incident and found the
two parties on the terraces of the two houses. The
policemen warmed both the sides, but to no effect and it is
said that they saw the two factions hurling stones at each
other. It is further alleged that A-2, A-4, A-6 and A-9,
who were armed with guns, fired. at the party of Harish
chandra Reddy on the terrace of Subbi Reddy. Ramkrishna
Reddy received gun shot injuries and died. Several other
persons belonging to his party received gun shot injuries.
The policemen tried to apprehend the accused, but they ran
away. The party of the deceased was asked to make a report
but as they were not willing to do so, report Ex. P.2 was
drawn up by P.Ws. 1 and 2 and was sent to the police
station. A case was registered and investigation was
commenced by P.W. 30. The dead body of Ramkrishna Reddy was
sent for postmortem examination, and so also the injured
persons. The case was ultimately tried by Additional
Sessions Judge, Cuddapah, who did not find it possible to
place reliance on the evidence of the prosecution witnesses
and acquitted the accused by his judgment dated April 21,
1971. An appeal was filed against the acquittal. Appel-
lants A-1, and A-2 died thereafter. As has been stated, the
High Court has set aside that judgment in respect of the
acquittal of A-3, to A-9, A-11, A-12, A-13 and A-19, but has
confirmed the acquittal
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of the remaining accused. This is how those who have been
convicted have come up in appeal to this Court.
As has been stated, P.Ws. 1 to 3 are the policemen. The
first two of them were responsible of the lodging of the
first information report Ex-P.2 within an hour of the
incident. P.W. 1 was a constable blonging to the police
station and was familiar with the names of the accused.
P.W. 2 was the ’naik’ of the armed police, and P.W. 3
belonged to his force. The High Court has relied heavily on
the testimony of these witnesses and the question is whether
’it has committed any error of law in doing- so, or has
misread the evidence in, any respect.
It has been strenuously argued by Mr. Basi Reddy on behalf
of the appellants that policemen arrived at the place of the
incident after everything was over and have falsely claimed
that they witnessed the incident. In support of his
argument counsel has placed considerable reliance on the
statements of these witnesses in the departmental inquiry
against them for dereliction of duty, and has also urged
that these witnesses could not possibly have been familiar.
with the names of the accused.
We have examined both these arguments. The High Court has
taken note of the fact that P.W. 1 was a local constable who
was stationed in village Kasanur not only for the occasion
which led to the present incident, but also on earlier
occasions including service of summonses. He had therefore
opportunities of knowing the accused by name, and it cannot
be said that the High Court misread the evidence in taking
that view. The High Court has also examined the earlier
statements of the witnesses in the departmental inquiry and
has taken the view that those, statements were given for the
purpose of avoiding an adverse finding in the inquiry. It
has also given adequate reasons for holding that they were
present at the time of the incident and were reliable
witnesses. One "tell-tale" fact which lids been taken into
consideration in this respect is the injury which was
received by P.W. 3 when both sides were throwing stones at
each other. P.W. 17, who was the medical officer, attached
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to the government hospital at Pulivendla, examined the
injury, and the High Court was justified in taking the view
that it was inflicted at the time of the incident. So when
there was satisfactory evidence to prove the presence of
P.W.3 at the time of the incident, it was only natural that
P.W. 2, who was his ’naik, should also’ have been present
there. As P.W. 1 was familiar with the area and was a
member of the police party, the High Court rightly took the
view that all three of them were present at the time of the
incident and witnessed it. The High Court has made a
reference to the other evidence bearing on its finding to
that effect, and we find no reason to disagree with its view
that the policemen witnessed the incident and were reliable
in what they have stated. A-2, A-4, A-6 and A-9 fired their
guns resulting in the death of Ramkrishna Reddy and the
injuries on several prosecution witnesses. Of these A-2 has
died, and no other argument worth the name has been made for
interfering with the
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order of their conviction and the sentences imposed on them
by the High Court. Their conviction and the sentences are
therefore upheld.
The question however remains whether the other appellants
have rightly been convicted of offences under sections 302,
326 and 324 with the aid of section 149 I.P.C. The High
Court has made a reference to section 151 I.P.C. and has
taken the view that they were’ members of an unlawful
assembly as they continued in it after it bad been lawfully
commanded by the policemen to disperse.
Section 149 I.P.C. provides that if an offence is committed
by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of
that assembly knew. to be likely to be committed in
prosecution of that object, every person who at the time of
the committing of that offence, is a member of the same
assembly, is- guilty of that offence. "Unlawful assembly"
has been defined in section 141 I.P.C., while section 142
states who can be said to be its member. An unlawful
assembly is thus an assembly of five or more persons if the
common object of the persons composing it is of the nature
specified in items first to fifth of the section. It cannot
be urged, for purposes of this case, that any item other
than that part,of the third item which relates to "other
offence" could possibly be attracted to the present case.
It has therefore to be examined whether it has been
established by the prosecution that the common object of the
accused was to commit any offence.
We have gone through the evidence of P.Ws. 1, 2 and 3 on
which reliance has been placed by the High Court. It will
be recalled that P.W. 1 was familiar with the factions in
the village. The, relevant part of his testimony is that he
found about 30 persons of the party of A-1 on the terrace of
Reddygari Ramireddy’s house, that A-2, A-4, A-6 and A-9 were
in that- party and were armed with guns while the others
were armed with spears. The fact that those four accused
who fired their guns has been stated in the first
information report but it does not mention that the other
accused were armed with spears. The witness has further
stated that the party of Harishchandra Reddy was on the
terrace of the house of Subbi Reddy and that both the
parties were pelting stones at each other. He claims that
the policemen warned both the parties, and when they moved
to the house of Bayapureddy, A-2, A-4, A-6 and A-9 shot guns
in the direction of Subbi Reddy’s house. Now apart from the
fact that there is no mention in the first information
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report that the other accused were armed with spears, we
find that no speat injury was found on the members of the
other party. In fact the accused could possibly have no
advantage in arming themselves with spears as they were at
such considerable distance from the other party that even
the stones did not anyone in that gathering. P.W. 1 has
signed the first information report (Ex-P. 2), and it shows
that the party of the accused went upto the terrace
"suddenly". Thus after
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examining the entire statement of P.W. 1 we find that it is
not possible to reach the conclusion that the other accused
were armed with spears, or that they went up the terrace
with the common object of committing any offence. P.W. 2
was the ’naik’ of the Armed Reserve Police Force, while P.W.
3 was a constable. We have gone through their statements
also and the same is the position in regard to them.
The High Court has not found it possible to place reliance
on the version of the other prosecution witnesses that all
the 25 accused named by them participated in the crime.
Reasons for that view have been mentioned in the judgment.
Those witnesses were members of the opposite faction, and
their testimony has to be examined carefully. The
statements of those witnesses are quite similar, and it will
be sufficient to refer to the statement of P.W. 4 who has
deposed about the strained relations leading upto the last
incident and has given all the details about it. He has
stated that while they were sitting in the verandah of the
house of Subbi Reddy at about 4 p.m. on the day of the
incident, the deceased came and told them that he and
Anjaneyulureddi were beaten by A-6 and others in
Simhadripuram and that P.W. 5 also came running and :stated
that he was chased by the people of the party of A-1. The
witness has further stated that all of them then went up the
terrace of Subbi Reddy’s house and that he and
Rangareddigari Viswanathareddy " called the people of the
party of A-1" after going to the top of the house and the
accused also came to the terrace of the house of Reddigari
Ramireddy and Somireddy P.W. 5 has stated that "then P.W. 4
and Rangareddigari Viswanatha Reddy went a little forward to
the terrace of Rachamalla Krishna Reddy and cried out who-
ever was prepared to fight should (could) come" and "then
all the accused herein and Lakshmi Reddy and Narasimha Reddy
who are now dead went upto the terrace of Reddigari
Ramireddy." It is therefore quite clear that the party of
the accused did not go to their terrace of their own accord
for committing any offence. It is true that A-2, A-4, A-6
and A-9 were armed with guns and fired them some time
thereafter, but there is nothing in the testimony of P.Ws.
1, 2 and 3 to show that they did so in pursuance of the
common object of the other persons who were on the terrace
at that time. We are mindful of the fact that under the
explanation to section 141 I.P.C., an assembly which was not
unlawful when it assembled may subsequently become an
unlawful assembly, but there is nothing in the testimony of
the three police witnesses to show that this was so in the
present case or that the other accused exhorted those who
fired the guns or knew that the guns would be fired. An
offence will no doubt fall within the purview of section 149
I.P.C. even if members of the assembly knew that it was
"likely to be committed" in prosecution of their common
object or if the offence was such as the members of that
assembly knew to be likely to be committed in prosecution of
that object. There is however nothing in the statements of
the three police witnesses to prove that this was so.
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Section 149 I.P.C. will not therefore fasten criminal
liability on the other accused.
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As has been stated, the High Court has invoked section 151
I.P.C. for convicting the other accused under section 149
I.P.C. and has made a reference to the warning which was
given by the policemen at the time of the incident. Section
151 will however be attracted only if there was evidence to
show that the assembly had been "lawfully commanded to
disperse." But there is nothing in the statements of the
three police witnesses to show that they gave any such
command. They have merely stated that they warned the two
factions who were pelting stones, and none of them has
stated that any command for dispersal was given by any of
them. The High Court therefore erred in invoking section
151 I.P.C. for the- purpose of convicting the other accused
with the aid of section 149 I.P.C.
It would thus appear that there is no reliable evidence to
prove that the accused assembled at the terrace of Reddigari
Ramireddy’s house for the purpose of committing any offence.
On the other hand, it has been established from the
statements of P.Ws. 4 and 5 that they went there on their
aggressive call. There is also no evidence to show that the
other members of the assembly knew that those who were armed
with guns were likely to, use them or that they exhorted or
encouraged the firing. The version regarding their being
armed with spears cannot be accepted as it has not been
mentioned in the first information report. Moreover, as has
been pointed out, spears could not possibly have been used
because of the intervening distance and it is a fact that no
injury was inflicted on anyone with these weapons. The
distance which separated the two parties was go considerable
that even stones did not hit anyone. We are therefore
unable to uphold the conviction of the other accused with
the aid of section 149 I.P.C. and they deserve to be
acquitted.
In the result the appeal fails in so far as the conviction
and sentences of appellants A-4, A-6 and A-9 are concerned,
but it is allowed in respect of the other eight appellants
and they are acquitted of the offences of which they have
been convicted and sentenced by the High Court. They are in
jail and shall be released forthwith.
S.R. Appeal allowed in part.
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