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CASE NO.:

Appeal (crl.) 519-521 of 2003

Appeal (crl.) 672-674 of 2003

PETITIONER:

Goura Venkata Reddy

RESPONDENT:

State of Andhra Pradesh

DATE OF JUDGMENT: 19/11/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

Different political ideologies may be followed in a democratic set

up; that is but natural. But when differences become physical and lead

to loss of life by violent acts it reflected sadly on the political

maturity of people and the citizens at large. The present case, as the

prosecution version shows, is one of those large number of instances

where physical violence has led to loss of lives of two persons.

The appellants who faced trial along with 11 others and two

deceased persons, and the prosecution witnesses belong to different

political parties. The difference between them is said to be long-

standing on account of political rivalry, and it reached its crescendo

on 18th October, 1995 and 19th October, 1995. On the first of the dates,

relative of one political leader was allegedly kidnapped and his dead

body was found later on the next day i.e. 19th October, 1995 to which the

present case relates. The two deceased persons, namely, Ambi Reddy and

Chinna Ramasubbaiah (hereinafter referred to as D-1 and D-2) along with

PWs 1 to 4 and two others were traveling by four motorcycle with two

occupants in each. As the prosecution version shows the 20 persons way

laid them. D-1 and D-2 were dragged out of the motorcycle and at the

instigation of A-1 Goura Venkata Reddy and one M. Venkateswara Reddy

others picked up stones from the way side and threw them causing

grievous injuries. After causing injuries, assailants-accused persons

went away. The occurrence took place at 11.45 a.m. The accused persons

were traveling in a Jeep and two lorries. The injured persons were taken

to the hospital; one of them (D-2) was declared dead at the first

hospital where he was taken. The doctor, however, advised the relative

to take the other deceased D-1 to another hospital for better treatment.

At the said hospital in spite of the best efforts his life could not be

saved. The first information report was lodged around 1.00 p.m.

Investigation was undertaken and on completion thereof, the charge sheet

was placed. It is to be noted that during investigation the name of M.

Venkateswara Reddy was deleted pursuant to the directions of the Sub

Divisional Police Officer. As such in total 19 accused persons were

charge sheeted. However, the case of one was separated and 18 accused

persons were tried. Out of them A-1 to A-8 were convicted, and the rest

were acquitted. A-1 was convicted for offence punishable under Section

302 read with Section 109 of Indian Penal Code, 1860 (for short the

'IPC'). A-2 to A-8 were convicted for offences punishable under Sections

302 and 147. A-1 was sentenced to undergo imprisonment for life, while

A-2 to A-8 were similarly sentenced for the offence punishable under

Section 302 and two years for offence punishable under Section 147. The

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State preferred an appeal before the High Court of Andhra Pradesh

questioning the acquittal of the 10 persons and for non-conviction of A-

1 under Section 147 and for such non-conviction under Section 148 in

relation to A-2 to A-8. The convicted persons also questioned

correctness of the their conviction. The High Court by the impugned

order upheld the acquittal of the 10 accused persons. Appeal relating

to non-conviction under Section 148 so far as A-2 to A-8 are concerned

was also dismissed. In case of A-1 conviction was made under Section

147 and by a modified order sentence of two years was imposed. The

convicted accused persons have preferred these appeals questioning the

common judgment rendered by the Division Bench of the Andhra Pradesh

High Court. As the appeals related to the same judgment, they are taken

up together for disposal.

According to Mr. Sushil Kumar, learned senior counsel appearing

for the appellants, the judgments of the trial Court as well as of the

High Court cannot be maintained on more grounds than one. There was

delay in lodging the complaint. In the first information report only 7

names were given out of which name of M. Venkateswara Reddy against whom

specific overt acts were attributed by the assailants was deleted from

the accused persons. PWs 1 to 4 did not suffer any injuries, which is

unnatural. There was no pre-meditation to commit any offence; as is

evident from the fact that none of the accused persons were armed. In

respect of accused Jaidip the alibi was accepted. Only partisan related

and interested witnesses have been examined. It was stated in the first

information report that 7 named persons and others whose names were not

indicated were the assailants. In respect of A-6 it was stated that his

presence came to be known. Obviously, PW-1 who was an eyewitness

included his name in array of other accused persons. Though his claim in

Court is to have seen the occurrence, in the first information report a

different picture was given and this renders his presence improbable.

There were serious laches in investigation and 19 stones pieces were

collected as if only 19 stones were lying. This was obviously cooked up

to be in line with 19 injuries found on the bodies of the two deceased

persons. The medical evidence i.e. the post mortem report shows that at

the time of post mortem it was noticed that the stomach of each of the

deceased was empty. It is improbable that their stomach would be empty

at the point of time the occurrence is claimed to have taken place. It

is the defence version that two dead bodies were found on the way, it

was not known who were the assailants and because of hostility the names

of the appellants have been incorporated. The evidence of PW-1 to PW-4

is highly unreliable and is contradictory in terms. It was further

submitted that there was a police station nearby at which report could

have been given by those who had not accompanied the injured persons to

the hospital. The trial Court and the High Court have not considered the

case of the accused in the proper perspective. In any event Section 302

IPC has no application.

In response, Mrs. K. Amreshwari, learned senior counsel, appearing

for the State submitted that concurrent findings of fact have been

recorded by the trial Court and the High Court. After lengthy cross-

examination in great detail, nothing infirm has been pointed out by the

accused persons. Merely because one stone each was thrown, that cannot

rule out application of 302 IPC, as was submitted by learned counsel for

the appellants. A-1 is liable to be convicted under Section 109 also

because at his instigation the other assailants' acts were done thereof.

There was no delay in lodging the first information report. The

occurrence, according to prosecution, took place at 10.45 a.m. The

immediate reaction of the witnesses who were present would be to save

the lives of the injured persons. It is clear from evidence that they

were not dead immediately. Therefore, their conduct in trying to shift

the injured persons to the hospital for treatment is natural and normal.

It is pointed out that everybody's mind would be focused on how best

treatment can be provided to save the lives. The death of one of the

deceased persons was around 12.00 noon. High Court had rightly noted

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that the witnesses would have taken sometime to regain composure and to

prepare first information report. When these normal circumstances are

taken note of, it cannot be said that there was any delay in lodging the

first information report. So far as absence of injury on the witness is

concerned it has come in evidence that A-1 instigated the accused

persons to assault the witnesses who were present and then they ran

away. In this background the absence of injury on them cannot be a

suspicious circumstance. Merely because the name of M. Venkateswara

Reddy has been deleted, that cannot be a ground to give benefit to the

accused persons. Even though the manner in which the name of said person

was deleted raises the eyebrows, some explanation has been offered with

the acceptability of which we are not concerned in the present appeals.

That brings us to the other crucial aspect i.e. whether the

presence of A-6 at the time of occurrence is made out and whether the

case falls under Section 302 IPC in the factual ground indicated. So

far as A-6 is concerned, in the first information report the PW-1 has

stated as follows:

".....One Raghu Ramaiah of Cherukucherla was

also known to have participated in the occurrence

along with Goura Venkata Reddy."

Clarificatory statement accompanied the first information report

which was lodged at 1.00 p.m. goes to show that PW-1 was not sure of the

presence of A-6. But in the FIR and statements of other witnesses, name

of A-6 clearly finds place. PW-1 has explained how the confusion has

arisen and Courts below have accepted it. There were twenty assailants.

Merely because one witness has entertained some doubt and was not sure

of his presence and has heard about it, same cannot be a ground to doubt

veracity of evidence tendered by PWs 2 to 4.

Though it cannot be said as a rule of universal application that

if one stone is thrown causing injuries, Section 302 IPC is ruled out,

we find from the doctor's evidence that all injuries found on the bodies

of the two deceased persons individually were not held to be fatal. As

the prosecution version goes to show 19 persons including the 10 who

were acquitted had thrown stones. Looking to the size of the stone as

described in the documents on record, they do not appear very big. Here

again, no general rule can be laid that small stone cannot cause any

injury leading to death punishable under Section 302 IPC. It would

depend upon the facts of each case. In the case at hand it cannot be

said that any particular injury was intended which would result in

death. But the accused persons can certainly be attributed with the

intention of causing death or causing such bodily injury as is likely to

cause death. Therefore, instead of conviction under Section 302 IPC,

the proper conviction would be under Section 304 Part I for accused-

appellants. Though names of A-7 and A-8 do not appear in the first

information report, but in the statements of witnesses recorded

immediately after occurrence their names were indicated. In the first

information report and the clarificatory statement appended thereto,

some names were given and it was clearly stated that some other persons

were also the assailants. This being the position mere absence of names

of A-7 and A-8 would not make any difference. Merely because the names

were not specifically mentioned but were spoken by the witnesses

immediately thereafter that cannot be sufficient by itself to create

suspicion. So far as A-1 is concerned, his conviction has to be under

Section 304 read with Section 109 IPC. Learned counsel for the

respondent submitted that instigation was cause of murder and merely

because the conviction is altered, that cannot be ground for non-

application of Section 302 read with Section 109 IPC.

Section 107 IPC defines abetment of a thing. The offence of

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abetment is a separate and distinct offence provided in the Act as an

offence. A person abets the doing of a thing when (1) he instigates any

person to do that thing; or (2) engages with one or more other persons

in any conspiracy for the doing of that thing; or (3) intentionally

aids, by act or illegal omission, the doing of that thing. These things

are essential to complete abetment as a crime. The word 'instigate'

literally means to provoke, incite, urge on or bring about by persuasion

to do any thing. The abetment may be by instigation, conspiracy or

intentional aid, as provided in the three clauses of Section 107.

Section 109 provides that if the act abetted is committed in consequence

of abetment and there is no provision for the punishment of such

abetment then the offender is to be punished with the punishment

provided for the original offence. 'Act abetted' in Section 109 means

the specific offence abetted. Therefore, the offence for the abetment of

which a person is charged with the abetment is normally linked with the

proved offence. In the instant case, the abetted persons have been

convicted for commission of offence punishable under Section 304. So in

the case of A-1 it is Section 304 read with Section 109 IPC, that is

attracted.

In the ultimate analysis, conviction of the appellants is altered

to Section 304 IPC, except in case of A-1 where the conviction is under

Section 304 read with Section 109 IPC. In each of the cases, the

sentence will be 10 years rigorous imprisonment. The conviction and

sentence in respect of other offences, will stand and the sentence

therefor shall run concurrently, as ordered by the High Court.

The appeals are allowed to the extent indicated.