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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.