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CASE NO.:

Appeal (crl.) 540 of 1998

PETITIONER:

Gubbala Venugopalaswamy and Ors.

RESPONDENT:

State of Andhra Pradesh

DATE OF JUDGMENT: 06/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

The four appellants described as accused A-1, A-2, A-3

and A-4 faced trial along with three others for alleged

commission of offences punishable under Sections 302, 120B

and 148 of the Indian Penal Code 1860 (for short 'the IPC').

The Trial Court found the present appellants to be guilty of

offence punishable under Section 302 IPC but not of the

other two offences. Accused A-5 to A-7 were acquitted as the

Trial Court held evidence to be insufficient to hold them

guilty. A-1 was sentenced to undergo life imprisonment with

fine of Rs.2,000/- with default stipulation of six months.

Matter was carried in appeal before the Andhra Pradesh High

Court which by the impugned judgment held A-1 and A-4 guilty

of offence punishable under Section 326 IPC and sentenced

each to undergo RI for 10 years and to pay a fine of

Rs.1,000/- with default stipulation of four months. A-2 was

found guilty of offence punishable under Section 302 IPC by

affirming conviction made and sentence imposed by the Trial

Court. A-3 was convicted of offence punishable under Section

324 IPC and was sentenced to undergo imprisonment for a

period of three years and to pay a fine of Rs.500/- with

default stipulation of two months imprisonment.

Prosecution version as unfolded during trial is as

follows:

All the accused assembled in the house of A-2

(Boorabathula Ramachandra Rao) at about 10.00 a.m. on

31.7.1993 and entered into a criminal conspiracy to kill

Gubballa Sambamurthy (hereinafter referred to as the

'deceased') on that day itself. Subsequently at 12.00 noon

on the same day A-2 to A-7 assembled again in the house of

one Chelliboyina Venkata Narasamma (examined as PW-5) in

West Kaza village and once again conspired to kill the

deceased when he would be going to Palakol. A-2 brought

knives in a bag and also informed the other accused persons

that A-1 would join them at 3.00 p.m. at the scene of

offence, and pursuant to their criminal conspiracy all the

accused assembled with yerukula knives and formed themselves

into an unlawful assembly at Palakol-Vardhanam road in the

cattle shed of Allam Udayavarlu on the outskirts of Palakol

on the same day at about 3.00 p.m. with the common object of

killing the deceased. At about 3.30 p.m. while the deceased

was going on his cycle from his village West Kaza towards

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Palakol with three empty cement bags to purchase sundry

articles in the shandy at Palakol, all the accused armed

with yerukula knives surrounded him when he came to the

scene of offence and inflicted injuries on him resulting in

his death on the spot. A-1 hacked him on his right side

neck, A-2 hacked him on his right side neck, and A-3 hacked

him on his back; and when the deceased fell down, A-4 hacked

him on his left chest. A-5 hacked him on his right shoulder,

A-6 hacked him below left shoulder and A-7 also hacked him.

At the time of occurrence, the brother of the deceased

Gubbala Sriramamurthy (PW-1), Gubbala Gopalam (PW-2) and

Gubbala Chalapathi (PW-3) all of West Kaza village were

following on two cycles a little behind the deceased, and

witnessed the occurrence, and on seeing them, accused

removed the body of the deceased to the nearby irrigation

body and escaped with their weapons. The scene of occurrence

was on the southern side of the road margin of Palakol-

Vardhanam road in front of the cattle shed of Allam

Udayavarlu on the outskirts of Palakol town. A-1 was the

leader of the Congress-I party and the other accused were

his followers; and the deceased was one of the organizers of

CPM party. Besides political rivalries, there were personal

rivalries between the families of A-1 and the deceased and

number of criminal cases were filed against the persons

belonging to the two parties. On the previous day, i.e. on

30.7.1993, Gubbala Venkataswamy, the brother of A-1,

performed the marriages of his son and daughter, and those

belonging to Congress-I party under the leadership of A-1

did not attend that marriage while the deceased and his

followers attended those marriages in large numbers and made

them a grand success and this precipitated the matters and

led the accused to a conspiracy to kill the deceased.

On completion of investigation charge sheet was filed

and after framing of charges, the trial was taken up. In

order to further its version, prosecution examined 16

witnesses while the accused persons examined 7 witnesses to

substantiate their plea of false implication and innocence.

The Trial Court found that as per prosecution, there were

eye-witnesses PWs 1, 2 and 3, though PWs 2 and 3 resiled

from the statements made during investigation. Primarily

conviction was recorded placing reliance on the evidence of

PW-1 though the Trial Court and the High Court found that

the evidence was not without blemish.

In support of the appeal, learned counsel for the

appellant submitted that Trial Court and the High Court

having accepted that there were exaggerations made by PW-1

and since evidence was not totally reliable, at least some

corroborative evidence should have been led by the

prosecution. The scene of occurrence was not established

and on the contrary, the evidence indicated that the

occurrence did not take at the place and in the manner

prescribed by the prosecution and the defence version was

more probable. The reasons ascribed by the Trial Court to

discard the evidence of PW-3 are equally applicable to PW-1

and no distinction should have been made to accept PW-1's

version. The conduct of prosecution witnesses and the

evidence tendered by them is clearly unnatural. It is too

much to accept that the accused persons would carry the dead

body when PW-1 was allegedly witnessing the occurrence.

Courts below having considered PW-1 to be not wholly

reliable should have directed acquittal.

In response, learned counsel for the State submitted

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that though PW-1 has not been able to clearly state about

certain aspects, yet portion of his testimony has been found

sufficient by the courts below to fasten guilt on the

accused persons. The conclusions are essentially factual

and two courts below having found the evidence to be

sufficient for the purpose of convicting the accused

persons, no interference is called for. There was no cross-

examination on the aspect regarding presence of PW-1 at

about 1.30 p.m. Though the Trial court and the High Court

found some variations in the evidence yet the overall view

has been taken and no interference is called for on that

score also.

Much stress has been laid by the learned counsel for

the appellants on the alleged unnatural conduct of the

witnesses. We find, as has been found by the courts below,

after finding deceased to have breathed his last the obvious

reaction was to set the law into motion. The plea that FIR

was not lodged at the nearest Police Station is without

substance. It is clearly stated in evidence that a Constable

told the witness that the Inspector is not available and he

was not competent to accept the intimation and had suggested

that the report may be lodged at another Police Station

having jurisdiction.

As a rule of universal application it cannot be said

that when a portion of the prosecution evidence is discarded

as unworthy of credence, there cannot be any conviction. It

is always open to the Court to differentiate between an

accused who has been convicted and those who have been

acquitted. [See Guru Charan Singh and Another v. State of

Punjab (AIR 1956 SC 460) and Sucha Singh and Another v.

State of Punjab (2003 (5) Supreme 445)]. The maxim "Falsus

in uno falsus in omnibus" is merely a rule of caution.

As has been indicated by this Court in Sucha Singh's case

(supra), in terms of felicitous metaphor, an attempt has to

be made to separate grain from the chaff, truth from

falsehood. When the prosecution is able to establish its

case by acceptable evidence, though in part, the accused can

be convicted even if the co-accused have been acquitted on

the ground that the evidence led was not sufficient to

fasten guilt on them. But where the position is such that

the evidence is totally unreliable, and it will be

impossible to separate truth from falsehood to an extent

that they are inextricably mixed up, and in the process of

separation an absolute new case has to be reconstructed by

divorcing essential details presented by the prosecution

completely from the context and background against which

they are made, conviction cannot be made.

The above position was highlighted in Narain v. State

of M.P. (2004 (2) SCC 455)

We find that PW-1's version has not been found credible

on certain aspects. But that per se cannot be a ground to

discard his evidence even if it is found to be otherwise

credible. So far as the prosecution version is concerned, he

has ascribed particular roles and acts to the accused

persons. Though PWs 2 and 3 have turned hostile in respect

of part of their evidence, it is fairly settled position in

law that even if part of evidence is discarded, that cannot

be a ground to discard the evidence, more particularly that

part of the evidence which is cogent and credible. The

evidence and subsequent acts have been attributed to A-4 in

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view of the evidence of PW-1 which has remained unaffected,

in spite of the incisive cross-examination. The evidence on

record is sufficient to establish the conviction. But we

find that sentence of 10 years has been awarded for the

offence punishable under Section 326 IPC. It is on the

higher side. Custodial sentence of 5 years to A-1 and A-4

for their conviction under Section 326 IPC would suffice.

In the ultimate result, the appeal filed by A-1 and A-4 are

allowed to the extent of reduction in sentence, and stands

dismissed so far as A-2 and A-3 are concerned.

The appeal is disposed of as indicated above.