Full Judgment Text
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PETITIONER:
B. SUBBA RAO & ORS.
Vs.
RESPONDENT:
PUBLIC PROSECUTOR,HIGH COURT OF ANDHRA PRADESHAT HYDERABAD
DATE OF JUDGMENT: 07/08/1997
BENCH:
M. K. MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Mukherjee. J.
This appeal under Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970
read with Section 379 of the Code of Criminal Procedure,
1973 is directed against the judgment and order dated
December 31, 1992, rendered by the Andhra Pradesh High Court
in Criminal Appeal No. 256 of 1991 whereby it reversed the
order of acquittal recorded in favour of the seven
appellants herein by the Sessions Judge, Ongole in respect
of charges under Section 148 and 302/149 IPC and convicted
them thereunder. The gravamen of the charges was that on
February 26, 1988 at or about 6.30 P.M. the appellants (who
were arrayed as A-1, A-2 and A-4 to A-8 respectively in the
trial Court and hereinafter will be so referred to) along
with A-3 (who died during the pendency of the trial), formed
and unlawful assembly in the office of the Mandal Revenue
Officer, Peda Cheriopalli (‘P.C. Palli’ for short) village
armed with deadly weapons with the common object of
committing the murder of Nailuri Thirpathaiah of village
Marella and in furtherance of that common object did commit
his murder. The charges were based on the following
prosecution case:
2(a) A-1 to A-5, A-6 and A-7 and A-8 were residents of
villages Marella, Peda Alavalapadu and Gudevaripalem
respectively. A-1 was the President of Telugu Desam party of
P.C. Palli Mandalam and A-2 to A-8 were his friends and
associates. The deceased, Tirupathayya (P.W. 1) and
Brahmayya (P.W. 2) were residents of Marella Village whereas
Gangayya (P.W. 3) was a resident of Pothavaram village. Both
these villages were within the jurisdiction of P.C. Palli
Mandalam. Suryanarayan Rao (P.W. 4) was the Mandal Revenue
Officer of P.C. Palli Mandalam at the material time.
(b) Since 1984, two rival political groups were functioning
in Marella village, one led by A-1 and the other by the
deceased; and a number of criminal case instituted by the
groups against each other were pending. In February 1987,
elections were held there for the Mandal Praja Parishad in
which wife of A-1 was elected the President of the Parishad
while the deceased was elected as the President of Single
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Window Society of P.C. Palli Manadalam.
(c) In the following year, i.e. 1988, February 27, was
fixed as the date for filling nomination papers for the
panchayat election. Some of the candidates for such election
were to file, along with their nomination papers, extracts
of voters list and their caste certificates. As such, on
February 26, 1988 a number of people came to the office of
P.W. 4 to obtain those documents. One of them was A-1, who
approached P.W. 4 for caste certificate and extracts of
voters list for his party members. Following him came the
deceased, P.W. 1, P.W. 2 and P.W. 3 at or about 6 P.M. with
a similar request. While they were sitting in the office of
P.W. 4, A-1, who had left this (P.W.4) office in the
meantime, came back and requested P.W. 4 to visit Pothavaram
Village to consider the inclusion of about 40 person, who
were his followers, as voter. The deceased however insisted
that P.W. 4 could not leave the office without issuing the
voters’ lists and caste certificates asked for by him. A-1
then left the office saying he would come back within half-
an-hour and asked P.W. 4 to complete his job in the
meantime.
(d) Sometime later (at or about 6.30 P.M.) the seven
appellants along with A-3 rushed into the office of P.W. 4
armed with deadly weapons and started beating the deceased.
While A-1 beat him with an axe on his neck, A-2 beat him
with a similar weapon on his right forearm and head.
Thereafter the others stabbed the deceased indiscriminately
with knives resulting in his instantaneous death. Then they
fled away in a jeep and a car.
(e) On the following morning P.W. 1 went to Kanigiri Police
Station at or about 8.30 A.M. and submitted a written report
of the incident (Ex.P-1) to S.I Sankara Reddy (P.W. 10). On
that report P.W. 10 registered a case (Crime No. 26/88) and
sent copies of the report to all concerned. On receipt of a
copy of all report Srihari Rao, Inspector of Police,
Kanigiri (P.W. 11) left for Kanigiri at 9 A.M. He visited
the scene of offence, prepared observation report (Ex.P-2)
in the presence of Kasavarao (P.W. 6) and other mediators,
prepared rough sketch of the scene of offence (Ex. P.15)
and seized some articles (M.O. 4 to 10) under a seizure list
(Ex. P-2) P.W. 11 also conducted inquest over the dead body
of the deceased in presence of P.Ws. 1, 2 and 3 and other
and then sent the corpse of post-mortem examination.
(f) Dr. Rammohana Reddy (P.W. 7) Civil Assistant Surgeon,
Government Hospital, Kanigiri, conducted the post-mortem
examination on February 28, 1988 and found 45 injuries on
the person of the deceased including 40 incised wounds. He
issued a post-mortem certificate (Ex. P-9) opining that the
deceased died due to shock and haemorrhage as a result of
the injuries about 36 hours prior to the post-mortem
examination.
(g) In course of investigation P.W. 11 seized a jeep
bearing No. AAN- 6152 on February 29, 1988 from the garage
of one S. Prasad Rao. He also seized a car bearing
registration No. APN-7953 on the same day at 8.00 P.M. In
the presence of G. Ramesh, driver of the said car. On March
7, 1988, P.W. 11 arrested A-8 and on March 31, 1988, A-2, A-
4 to A-6, A-2, A-4 to A-6 made statements (Ex. P-4 to P-7)
respectively) before P.W. 11 pursuant to which he seized two
battle axes and two knives (M.Os. 11 to 14 respectively)
under a Panchnama (Ex.P-8) in the presence of P.W. 6 and
another witness. After completion of Investigation,
successor of P.W. 11 filed the charge-sheet.
3. The defence of the appellants was that they were
innocent and were falsely implicated due to political
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rivalry. A-7 took a further defence of alibi and contended
that at the material time he was working as Village
Assistant in Chennupalli village, which was far off from the
place of the incident.
4. In support of their respective cases, the prosecution
examined eleven witnesses of whom P.Ws. 1 to 4 figured as
eye witnesses A-7 examined one witness (D.W. 1) and
exhibited some documents to prove his plea of alibi
5. On going through the judgment of the trial Court we
find that it put forth the following reasons for acquitting
the appellants:
i) P.W. 1 to 3 were partisan,
interested and procured witnesses;
ii) the non seizure of the
hurricane lamp, which was said to
be burning at the time of the
incident and with the light of
which eye-witnesses claimed to have
seen the incident, by the police
during investigation clearly
indicated that there was no such
lamp and hence story of
identification by its light was
untrue.
iii) the earliest report that was
sent by P.W. 4 to the Police
Station which could be the F.I.R.
was not produced during trial; and,
Exhibit P-1 which was brought into
existence during investigation of
the case could not be legally
admissible as F.I.R. in view of the
provisions of Section 162 Cr. P.C.
;
iv) the non-examination of the (i)
jeep driver in which the accused
persons allegedly fled away, (ii)
the village servant through whom
P.W.4 claimed to have sent his
report to the Police Station and
(iii) other villagers, who lived in
and around the office of P.W. 4,
raised an adverse presumption
against the prosecution;
v) the prosecution case suffered
from the same infirmity also for
non-examination of the fair price
shop dealer, who according to it
(the prosecution) was present just
prior to the commission of the
offence in the office of P.W. 4;
and
vi) the alleged confessional
statements of some of the
appellants were deliberately
concocted and therefore, no
reliance could be placed on the
alleged recovery of weapons of
offence pursuant thereto.
6. In setting aside the order of acquittal, the High Court
first demonstrated that each of the above reasons was
perverse and then, on discussion of the evidence held, the
prosecution succeeded in proving its case beyond all
reasonable doubts and that the plea of alibi raised by A-7
was without any basis whatsoever.
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7. We have heard Mr. Lalit and Mr. G. Prabhakar, the
learned counsel for the appellants and respondent
respectively and with their assistance gone through the
record. Mr. Lalit submitted that having regard to the fact
that the trial Court detailed and appraised the entire
evidence and gave cogent grounds for acquitting the
appellants the High Court was not justified in upsetting the
same merely because another view of the evidence could be
taken. In support of his above contention, Mr. Lalit took us
through the finds recorded by the trial Court to impress
upon us that were the outcome of a proper appreciation of
the evidence.
8. That in the evening of February 26, 1988, the deceased
met with a homicidal death in the office of PW 4 stands
established by overwhelming evidence on record. We need not
however detail or discuss the evidence on this point for
both the Courts below recorded concurrent findings in this
regard and those findings were not challenged before us.
Since, however, the findings of the trial Court in this
regard have an important bearing on its other findings we
extract the same:
"PWs 1 to 3 stated that all the
accused entered into the office
Room of P.W. 4 and attacked the
deceased with axes and knives. P.W.
4 who is the Mandal Revenue Officer
sitting in front of the deceased
thought did not implicate these
accused specifically testified,
that ten (10) persons armed with
iron rods attacked the deceased.
So, regarding the attack on the
deceased by the assailants with
deadly weapons in the Office Room
of P.W. 4 is proved. Admittedly,
the deceased died in the Office
Room of P.W. 4, at Peda
Cherlopalli. Peda Cheriopalli will
herein after called as ‘P.C.
PALLI’. The evidence of P.W. 6
coupled with Ex.P3 Inquest report
would show that the deceased had
‘homicidal death’. In Column-15 of
Ex.P3 Inquest report, the cause of
death of the deceased is mentioned,
as ‘HOMICIDAL’. The evidence of
P.W. 7 (Doctor) who conducted the
post mortem examination over the
dead body of the deceased and who
issued Ex. P9 post-mortem
certificate would go to show, that
the deceased had as many as 45
(forty five) external injuries an
opined, that the deceased would
appear to have died of shock and
haemorrhage, due to multiple
injuries. The date of incident and
the place of incident, and the
factum of the death of the death of
the deceased in the Office Room of
P.W. 4, instantaneously, are
undisputed."
(emphasis supplied)
9. The next and the crucial question that falls for our
consideration is whether the appellants caused the above
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death in the manner alleged by the prosecution. If the
answer given by the trial Court to the above question is
found to be based on a reasonable view of the evidence the
impugned judgment has got to be set aside, for law is now
well settled that if two reasonable conclusions can be
reached on the basis of the evidence, the appellate Court
should not disturb the order of acquittal. If, however, it
is found that the finding of acquittal is manifestly wrong
leading to miscarriage of justice as has been found by the
High Court the convictions of the appellants have got to be
upheld. Keeping in view the above principles we now proceed
to consider evidence of the four eye witnesses, namely,
P.Ws. 1 to 4. Since the incident took place in the office of
P.W. 4 we first take up his evidence for discussion.
10. P.W. 4 detailed the prosecution case, as narrated
earlier except that he did not name any of the appellants as
the miscreants. There is nothing on record to show that he
was interested in the cause of the prosecution or inimically
deposed toward appellants. Indeed, it was not even suggested
to him in cross examination that he was deposing falsely. It
can not be gainsaid also that he was the most natural and
probable witness as the incident took place in his office.
His evidence clearly establishes that about 10 miscreants
entered inside his office and one of them dealt a blow on
the head of the deceased, who was sitting in front of him,
with an iron instrument. He further testified that when he
saw one of the assailants raising his hand to give anther
blow to the deceased he ran away towards the field to save
himself. In cross examination he stated that one Fair Price
Shop dealer obtained a release order for palmolive oil at
6.30 P.M. Culling his evidence we get that the incident took
place between 6.30 and 7.00 P.M. and at that time P.Ws. 1 to
3 were also waiting in his room. Besides, A-1 was also in
his room sometime before the incident but left the room
saying that he would be back within half an hour. As noticed
earlier, the trial Court disbelieved the evidence of P.Ws. 1
to 3 on the ground that they did not see the occurrence, but
due to enmity with the party of the deceased concocted a
false story. The unimpeachable evidence of P.W. 4 that P.Ws.
1 to 3 were present at the material time clearly shows that
the above finding of the trial Court is patently wrong.
While on this point we may also profitably refer to the
earlier quoted passage from the judgment of the trial Court
where, besides other evidence, it relied upon the evidence
of P.Ws. 1 to 3 to conclude that the incident took place in
the office of P.W. 4. Mr. Lalit, however, drew our attention
to the statement of P.W. 4 recorded by a Magistrate under
Section 164 Cr.P.C wherein he had stated that by 7 P.M. on
the date of offence all the persons left his office except
the deceased and P.W. 3, and contended that the above
statement contradicted his statement in Court that all the
three witnesses (P.Ws 1 to 3) were present. According to Mr.
Lalit P.W. 4’s earlier statement negatived the presence of
P.Ws. 1 and 2 at the material time. We do not find any
substance in this contention; firstly because the above
statement recorded under Section 164 Cr.P.C. only indicates
that P.Ws 1 and 2 were not in his office at 7 P.M. (by which
time the incident was already over) and, secondly because,
the earlier statement did not materially affect the sworn
testimony of P.W. 4 that P.Ws 1 to 3 were present when the
incident took place.
11. As regards the comments of the trial Court that the
non-seizure of the hurricane lamp from the office of P.W. 4
materially affected the prosecution case, we can only say
that the same is baseless. Undoubtedly, at the material time
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P.W. 4 was engaged in issuing copies of voters lists and
caste certificates and if by then, darkness has set in it
can be legitimately inferred (leaving aside the positive
evidence of P.W. 4 in this regard) that there would be some
source of light to enable him to perform his job. In that
context, it was immaterial whether the police seized the
hurricane lamp, which according to P.W. 4 was burning inside
the office as it was not electrified.
12. Coming new to the criticism of the trial Court that the
failure of the prosecution to produce the report that was
sent by P.W. 4 to the police station in that very night
which according to it was the F.I.R. made its case suspect,
we may first refer to the evidence of P.W. 4 on this point.
He testified that after the incident he ran to the field and
thereafter went to the house of the Village servant at 11
P.M. and gave a written report to him with a direction to
have over the same to Kanigiri Police Station. Relying on
the above testimony the trial Court held that that report
sent to the police station was the first in point of time
and, therefore, the report that was subsequently given to
the police station by P.W. 1 (Ex. P-1) would be inadmissible
in evidence as F.I.R. in view of the provisions of Section
162 Cr.P.C. This aspect of the matter was dealt with by the
High Court in extenso and the finding of the trial Court was
taken exception to, with the following comments:-
"The learned Judge has extracted
the evidence of P.W. 4 to support
his contention that Ex.P-1 is hit
by Section 162 of the Code and in
fact there was an earlier report
given by P.W. 4 on record. But the
learned Judge has not correctly
quoted the relevant evidence of
P.W. 4 and only relied upon part of
it. It is true that P.W. 4 in his
evidence stated that he sent a
report on the night of 26.2.1988 at
about 11 P.M. through the village
servant to Police Station,
Kanigiri. Regarding the receipt of
Ex. P-1, the evidence of P.W. 10,
S.I of Police, Kanigiri during the
relevant period, read as follow :-
‘Prior to P.W. 1 giving Ex.P-1 to
me, I had no information about this
crime. None of the persons
acquainted with this crime,
appeared before me prior to Ex.
P.1..... After registering this
crime and I issued Ex.P-14 F.I.R. I
received a report from P.W. 4
through village servant.
This statement of P.W. 10 clearly
shows that Ex.P-1 was the report
received by P.W. 10 at the earlier
point of time regarding this crime
and consequently P.W. 10 registered
the same as F.I.R. and before P.W.
10 receiving Ex.P-1, they did not
have any information regarding this
crime. His evidence is also
specific to show that after P.W. 10
received Ex.P-1 and after P.W. 10
issued Ex.P-14 F.I.R basing on
Ex.P-1, he received another report
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from P.W. 4 through village servant
and probably he has not taken any
action thereon since the same was
hit be section 162 of the Code.
Thus what was received by P.W. 10
regarding this crime at the
earliest point of time was only Ex.
P-1 which P.W. 10 correctly
registered as F.I.R. and set the
law in motion."
13. Apart from the above comments of the High Court, with
which we are in complete agreement, we find that the
evidence of P.W. 10 clearly shows that the repot sent by
P.W.4, through the village servant, was received by him only
after investigation was taken up. In other words, the report
sent by P.W.4 would be a statement recorded under Section
162 Cr.P.C and consequently it could not be admitted in
evidence. This aspect of the matter can be viewed from
another angle also. Having regard to the fact that P.W.4 did
not name any of the assailants, suppression of the report
sent by him to the Investigating Agency did not and would
not have helped the prosecution in any way. In other words,
the prosecution would not have been benefited in any way by
suppressing the report that was made by P.W.4, more so when,
the fact that the incident took place inside the office of
P.W.4 in the evening of February 26, 1988 was not challenged
by the defence. Judged in that perspective even if that
report was produced and treated as F.I.R. the prosecution
case would not have been impaired in any way much less on
the ground canvassed by the trail Court.
14. That bring us to the evidence of P.Ws.1,2 and 3. All of
them claimed to have accompanied the deceased who, according
to them, was the leader of the Congress party of village
Marella, to the office of P.W.4 on the fateful evening to
obtain caste certificates and copies of voters’ list of
Marella and Pothavaram villages so as to enable them to file
nominations on the next day for the Gram Panchayat
elections. As their such claim is fully supported by P.W.4,
whom we have no reason whatsoever to disbelieve, it must be
said that they were the most natural and probable witness to
the incident. However, their evidence has to be examined
with utmost care and caution as they belong to the rival
group of the appellants and, hence, are partisan witnesses.
In narrating the incident they stated that while four of
them were inside the office of P.W.4, A-1 came there and
asked P.W.4 to go to Pothavaram to verify the voters’
lists. The deceased, however, insisted that only after
furnishing the lists and certificates for which they had
come, P.W.4 could go to Pothavaram. A-1 then went out of the
room. Sometime later all the appellants and A-3 entered the
room of P.W.4, and A-1 dealt two successive blows, one on
the head and another on the neck of the deceased. A-2 then
beat him with an axe on the right forearm and the others
started stabbing the deceased with knives. At that stage all
three of them ran away for fear of their lives. While P.Ws.
1 and 3 first went towards the road and then the fields,
P.W.2 ran to his village. P.Ws. 1 and 3 next stated that on
the following morning they reached Kanigiri by foot, got a
report of the incident written by a person of Cheriopalli
whom they met there (Kanigiri) and then to the police
station at or about 8.30 A.M. and handed over the report
(Ex.P-1) to S.I. Sankara Reddy (P.W. 10). It is their
further evidence that accompanied by the Circle Inspector of
Police (P.W. 11) they came to the scene of occurrence and in
their presence he (P.W. 11) held the inquest.
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15. We have carefully gone through the evidence of the
above three witnesses and found that except some minor
contradictions, the defence could not elicit any answer to
discredit them. Besides, the F.I.R. fully corroborated the
testimonies of P.Ws. 1 and 3. It was, however, contended by
Mr. Lalit that the unusual delay of 14 hours in lodging the
F.I.R. clearly indicated that P.Ws. 1 and 3 concocted a
story to implicate the appellants, who admittedly were their
political rivals. We do not find any substance in the above
contention of Mr. Lalit. The evidence of P.Ws. 1 and 3
clearly indicates that they spent the night in the fields,
then walked the entire distance to kanigiri which is 10
miles got the report written there and lodged it at the
police station at 8.30 A.M. Having seen the ghastly murder
being committed by their rivals, it was too much to expect
of P.Ws. 1 and 3 to rush to the police station, for
reasonable apprehension to their lives in the event of their
taking such a step could not be excluded. Obviously, for
that purpose P.Ws. 1 and 3 took shelter in the fields in the
darkness and proceeded to the police station in the small
hours of the following day. We are, therefore, of the
opinion that there was no avoidable delay in lodging the
F.I.R. On the contrary, in our view, it was lodged at the
earliest opportunity.
16. Another submission that was made by Mr. Lalit was that
thought P.Ws 1 to 3 claimed to have seen A-1 to be one of
the assailants, P.W. 4, who spoke of A-1’s earlier presence
in his office, did not mention that A-1 was one of the
miscreants. This contention of Mr. Lalit is also unmerited.
From the sequence of events we get that the trouble
originated when A-1, who was the leader of the appellants
group requested P.W. 4 to visit Pothavaram village while the
deceased insisted that the voters list and caste
certificates sought for by him should be handed over before
A-1’s request could be entertained. Immediately thereafter
A-1 left the place obviously to call his associates and to
come fully prepared with arms. It seems to us that lest it
be said that he was supporting either of the parties, P.W. 4
did not name A-1 and for that matter any of the miscreants.
We therefore find no reason to disbelieve the evidence of
P.Ws 1 to 3 that A-1, the leader of the group, started the
assault, followed by the other appellants.
17. As earlier noticed, the trial Court discarded the
prosecution case also for non-examination of the driver of
the jeep in which the appellants fled away, the village
servant and the persons present nearby, more particularly,
the Fair Price Shop dealer. The High Court dealt with this
aspect of the matter in details and made the following
observation with which we are in agreement:
"It is the case of the prosecution
that the accused sped away in a
jeep after the offence. It is the
submission of the learned counsel
for the accused that non-
examination of the driver of the
said jeep speaks against the
prosecution. The jeep driver is not
an eye witness to the crime and
consequently he could not have
spoken anything crime proper. At
the most he would have stated that
the accused has travelled in his
jeep soon after the offence. That
evidence would have been an
additional piece of evidence to
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strengthen the prosecution case.
But the question which we have to
consider is whether the trial Judge
is assuming that the non-
examination of the jeep driver has
the effect of displacing the
evidence of eye witnesses about
what they actually witnessed. We
are of the opinion that the trial
Judge was wrong in his assumption
that the jeep driver was a material
witness. Consequently, inference
adverse to the prosecution could
not have been drawn from the non-
examination of the driver of the
jeep.
P.W. 1 to 4 in their evidence
stated that while P.W.s 1 to 3 and
the deceased came to the office of
P.W. 4 the fair price shop dealer
and some persons were coming and
going to the room of P.W. 4, but
there is no evidence to show that
those persons were present when the
occurrence took place. Accordingly
to the prosecution, P.Ws. 1 to 4
along were present when the offence
took place and witnessed the
occurrence. Neither the fair price
shop dealer nor anybody else, who
visited the office of P.W. 4
earlier were present at the time of
the offence. In view of that, non-
examination of the fair price shop
dealer or other who visited the
office of P.W. 4 in the evening
hours on the fateful day, is of no
consequence and inference adverse
to the prosecution cannot be drawn
from their non-examination.
18. As regards the non examination of the village servant
to whom, P.W. 4 handed over a written report of the incident
for onward transmission to the police station, we may
reiterate that the report did reach the hands of the Police,
but only after the F.I.R. was lodged and therefore, there
was no need for the prosecution to examine him.
19. So far as the alibi of A-7 is concerned both the Courts
below dealt with the evidence given in support thereof at
length and found the same unacceptable. Indeed, Mr. Lalit
also did not advert to this aspect of the matter.
20. Having carefully gone through the evidence of the four
eye witness, the F.I.R. and the medical evidence which
fully corroborates the ocular version, we are of the opinion
that the prosecution has been able to prove its case beyond
all reasonable doubts. We need not therefore, go into the
question whether the finding of the trial Court regarding
alleged recovery of weapons pursuant to the statements of
some of the appellants is perverse or not.
21. For the foregoing discussion, we do not find any merit
in this appeal and dismiss the same.