NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 356-358 OF 1999

State of A.P.

….Appellant

Vs.

Rayaneedi Sitharamaiah & Ors. …Respondents

WITH

S.L.P. [CRL.] NOS. 3788-3790 OF 1998

JUDGMENT

B.N. AGRAWAL, J.

1.Out of ninety four chargesheeted accused persons of the police case, who were

committed to the court of sessions to face trial, five persons died during trial

and case of other five were separated as they were absconding. Thus, the

remaining eighty four accused persons along with accused persons in the

complaint case filed for the same occurrence and also committed to the court

of sessions to face trial, were charged and tried and by judgment rendered by

trial court, out of eighty four persons of police case, five accused persons, viz.,

Rayaneedi Prasad [Accused No. 1, in short “A-1”], Chaganti Satyanarayana

[A-4], Chaganti Subbarao [A-7], Rayani Alias Gammathu Raghavaiah [A-23]

and Rayani Alias Gammathu Anjaiah [A-24] were convicted under Section

302 of the Indian Penal Code [hereinafter referred to as ‘IPC’] and sentenced

to undergo imprisonment for life. They were further convicted under Section

148 IPC and sentenced to undergo rigorous imprisonment for a period of

three years. Both the sentences were, however, ordered to run concurrently.

Fifty accused persons of the said case, viz., Rayannedi Sitaramaiah [A-2],

Chaganti Nageswara Rao [A-5], Vankayalapati Laxminarayana [A-11],

Yarlagadda Arjunarao [A-12], Pothina Raghavaiah [A-13], Yarlagadda

Butchinaidu [A-14], Daggupati Masthanarao [A-15], Daggupati Nagamna [A-

16], Perni Aajaiah [A-17], Perni Pratap [A-18], Perni Venkanna [A-19],

Kondragunta Narasimha [A-21], Jagarlamudi Babi [A-22], Pothipa

Tirupataiah [A-27], Pothina Rangaiah [A-29], Jagarlamudi Sanjivaiah [A-31],

Jagarlamudi Ramu Alias Radhakrishnamurthy [A-32], Pthina

Lakshminarayana [A-33], Perni Venkatasubbaiah [A-35], Yarlagadda

Subbarao [A-36], Pothina Akkaiah [A-39], Goturu Alias Gottipati Lakshmiah

[A-40], Goturi alias Gottipati Venkateswarlu [A-42], Daggupati Kishore [A-

43], Daggupati Paparao [A-44], Gottipati Venkateswarlu [A-45], Daggupati

Hari [A-48], Pothina Krishna Murthy [A-49], Yarlagadda Ramesh [A-50],

Yarlagadda Apparao [A-52], Kampalli Veeranarayana [A-55], Pothina

Venkatesubbaiah alias Venkatasubbaiah Chowdary [A-56], Pothina Prasad

[A-57], Daggupati Brahmanaidu [A-58], Veerathu Prasad alias Ramprasad

[A-59], Rayaneedi Venkateswarlu [A-65], Pothina Ranganayakulu [A-66],

Talluri Paparao [A-67], Balija Subba Rao [A-68], Pothina Srinivasarao [A-

69], Yarlagadda Venkateswarlu [A-72], Yarlagadda Singaiah [A-73],

Yarlagadda Tirupataiah [A-76], Yarlagadda Veeranarayana [A-80], Mandava

Vithal alias Panduranga Vithal [A-82], Gorantla Tirupathaiah [A-85],

Daggupati Anjaiah [A-86], Pothina Gnanayyagari Subba Rao [A-91],

Nadendla Papa Rao [A-92] and Jagarlamudi Satyam alias Sriramulugari

Satyam [A-93], though acquitted of the other charges, were convicted under

Section 148, IPC and out of them four persons, viz., A-27, A-35, A-44 and A-65

were sentenced to pay a fine of Rs. 10,000/- each, in default, to undergo simple

imprisonment for a period of six months whereas the remaining forty six

accused persons undergo rigorous imprisonment for a period of three years.

The remaining twenty nine persons of the police case and other accused

persons of the complaint case were acquitted of the charges.

2. Three appeals were filed before the High Court against the judgment of the trial

court, one by fifty persons who were convicted under Section 148 IPC, another by five

accused persons who were convicted under Sections 302 and 148 IPC and the third appeal

by the State of Andhra Pradesh challenging the order of acquittal in relation to twenty

persons, viz., Yarlagadda Nayugamma [A-8], Mandava Radhakrishna Murthy [A-9],

Gorantla Anjaiah [A-10], Yarlagadda Udayabhaskara Rao [A-20], Pothina Mohana Rao [A-

28], Yarlagadda Anjaneyulu [A-30], J. Ramu [A-32] Puvvati Nageswararao [A-37],

Yarlagadda Nageswara Rao [A-46], Charukuri Venkateswarlu [A-47], Yarlagadda Somaiah

[A-53], Yarlagadda Brahmaiah [A-54], Ganta Tirupathaiah [A-60], Daggupati

Krishnamurthy [A-61], Yarlagadda Venkanna [A-62], Daggupati Rattaiah [A-63], Pothina

Laxminarayana [A-64], Chaganti Nayudamma alias Vaddila Nayudamma [A-74], Mandava

Venkatesubbaiah alias Subbarayudu [A-75], and Yarlagadda Krishna Murthy [A-90] all

of whom were accused in police case. No appeal was filed in relation to the remaining nine

acquitted accused persons of police case and acquitted accused persons of complaint case.

High Court allowed both the appeals filed by the accused persons and acquitted them of the

charges and dismissed the appeal filed on behalf of the State of Andhra Pradesh and

confirmed the order of acquittal.

3.Before this Court, three appeals have been filed by the State of Andhra Pradesh viz.,

Criminal Appeal No. 356 of 1999 against the order of acquittal rendered by the High

Court in relation to fifty accused persons, Criminal Appeal No. 357 of 1999 against

the same acquitting five persons who were convicted by the trial court under

Sections 302 and 148 IPC and the third being Criminal Appeal No. 358 of 1999

which is against the order whereby acquittal of twenty accused persons has been

confirmed by the High Court. Apart from filing the appeals by the State, on behalf of

the Tella Zedson [PW-1], three special leave petitions have been filed challenging the

same very order of acquittal which were registered as SLP [Crl.] Nos. 3788-90 of 1998

and the same were directed to be heard along with the said appeals.

4.Prosecution case in short was that since long time past dispute was going on between

two communities, viz., Kammas and Madigas [Harijans] in village Karamchedu.

Members of the Kamma community were having grievances against the Madigas as

they were not giving due regard and not extending courtesy to them which was being

extended since time immemorial. During assembly elections, members of Kammas

community supported Telugudesam Party and the Madigas Congress Party. The

immediate cause for the incident was that on 16.07.1985 at 3.00 pm A-69 took his

cattle to fresh water tank at Madigapalli, which is commonly known as Madiga

Kunta, and when he was taking out water therefrom for drinking of buffaloes, the

same was protested by Chandraiah [PW-21], upon which he was given a beating by

A-69. At that time, Munnangi Suvartha [PW-20], who was also present there,

protested whereupon A-69 assaulted her also and at that point of time Pandiri

Nageswara Rao [PW-76] intervened and pacified the matter. Feeling humiliated, A-

69 informed about the incident to his brother-in-law Rayaneedi Prasad [A-1]. Both

of them went to Madiga Kunta and started abusing PW-76, who is nobody else than

brother-in-law of PW-20. At that time A-1 and A-69 were pacified by PW-76,

thereupon A-1 and A-69 went to the house of PW-20 along with Pothina

Thirupathaiah [A-27] and others and abused and assaulted her [PW-20]. On the

intervention of PW-76 the matter was again pacified. A-1, A-69 and their relatives

who belonged to Kamma community felt humiliated and they wanted to teach a

lesson to the Madigas with the help of their caste-men.

5.Further prosecution case was that on 17.07.1985 at about 7.00 am the accused

persons went to Madiga Palli armed with spears, axes, crowbars and stout sticks with

an ulterior motive to commit offences. When they arrived there deceased Duddu

China Vandanam (D-1] was washing in a Kostam called “Dharmaraju Kostam”

near a church when A-6, A-7, A-15 and A-16 upon the instigation of A-14, A-18, A-

36 to A-43, A-66, A-73, A-75, A-76 and A-77 assaulted D-1 with axes and spears. So

far as deceased Tella Moshe [D-2] is concerned, he is said to have been chased by A-

23 to A-25 and assaulted him with spear on his head as well as on his left leg by A-23,

with an axe on right leg and head by A-24 and with a stout stick on his left hand by

A-25. At that point of time upon the instigation of A-1, A-2, A-19, A-36, A-37 & A-77

to A-79; A-3, A-14, A-16 and A-20 are said to have chased deceased Tella Muthaiah

[D-3] and assaulted him with a stout stick by A-3, with an axe by A-14 and with

spears by A-16 and A-20. Thereupon A-4, A-12 and A-23 to A-26 and some other

persons are said to have chased deceased Tella Yevasu [D-4] and assaulted him

indiscriminately with stout sticks by A-4, A-25 and A-26, with spears by A-12 and A-

23 and with an axe by A-24. Deceased Duddu Ramesh [D-5] is also said to have been

assaulted by the accused persons. Thereafter other accused persons assaulted

Munnangi Ankaiah [PW-2], Manda Pentaiah [PW-5], Chunduru Doss [PW-6], Tella

Symon [PW-7], Nune Visranthamma [PW-8], Munnangi Nageswara Rao [PW-9],

Tella Yebu [PW-10], Vusurupati Ramanamma [PW-11], Tella Solomon [PW-12],

Tella Kanthamma [PW-13], Tella Mariyamma [PW-14], Munnangi Laxmaiah [PW-

15], Tella Victoria [PW-16], Duddu Sulochana [PW-17], Benthat Veeraiah [PW-18],

Daddu Yesu [PW-19], Duddu Veeramma [PW-22], Thella Leelamma [PW-24], Pilli

Mastan [PW-25], Tella Mukkanti [PW-46], Tella Moshe [PW-47] and Pandiri

Nageswara Rao [PW-76]. The said five deceased persons succumbed to their injuries.

Although one more person is said to have received injuries but it is not known

whether he received injuries during the course of the present occurrence as no

accused person in the present case has been charged for his murder. After the

occurrence the accused persons fled away.

6.A First Information Report [hereinafter referred to as ‘FIR’] was lodged in which the

police upon registration of the case took up investigation and upon completion

thereof submitted chargesheet against ninety four accused persons whereupon a

complaint was filed before the learned Magistrate in which apart from ninety four

accused persons against whom chargesheet was submitted names of seventy more

persons were disclosed who were not sent up by the police. Learned Magistrate took

cognizance in both the cases and summoned accused persons of both the cases and

they were committed to the Court of Sessions to face trial.

7.Defence of the accused persons was that they were innocent, had no complicity with

the crime and no occurrence much less the occurrence alleged had taken place but

they were falsely implicated on account of two factions in the village.

8.Trial in both the cases was taken up jointly and only one set of evidence was recorded

therein. Prosecution examined 104 witnesses and adduced documentary evidence.

Defence examined four witnesses and adduced documentary evidence. Some of the

accused persons had taken the plea of alibi.

9.During trial out of the accused persons of police case five persons died and cases of

five were separated, consequently 84 persons were tried along with accused persons

of complaint case. Upon conclusion of trial, out of 84 accused persons of police case,

trial court convicted five accused persons under Sections 302 and 148 IPC whereas

fifty accused persons under Section 148 IPC. The remaining 29 accused persons of

police case and the other accused persons of complaint case were acquitted. On

appeal being preferred by the convicted accused persons their convictions have been

set aside whereas appeal filed by the State challenging the order of acquittal in

relation to 20 persons of police case has been dismissed by the High Court whereupon

the present appeals have been filed by the State by special leave and special leave

petitions by Tella Zedson [PW-1] as stated above.

10.Out of fifty respondents of Criminal Appeal No. 356 of 1999 five persons, viz.,

respondent no. 19 - P.V. Subbaiah [A-35], respondent no. 25 - D. Papa Rao [A-44],

respondent no. 28 - P. Krishna Murthy [A49], respondent no. 35 - D. Brahmanaidu

[A-59] and respondent no. 48 - P.G. Subba Rao [A-91] died. Likewise, in Criminal

Appeal No. 357 of 1999 respondent no. 2 - C. Satyanarayana [A-4], respondent no. 3 -

C. Subba Rao [A-7] and respondent no. 4 - R. Raghavaiah [A-23] died during its

pendency. So far as Criminal Appeal No. 358 of 1999 is concerned, therein also three

persons, viz., respondent no. 1 - Y. Naidumma [A-8], respondent no. 3 - G. Anjaiah

[A-10] and respondent no. 15 - Y. Venkanna [A-62] died. In this way these three

appeals in relation to the aforesaid eleven respondents abated. In these appeals out of

seventy five respondents eleven persons having died only sixty four persons remain.

11.In Criminal Appeal No. 358 of 1999, we are required to consider cases of 17

respondents only, three having died. In relation to these seventeen respondents the

High Court has confirmed order of acquittal. Learned counsel appearing on behalf of

the appellant State could not point out any infirmity either in the judgment of

acquittal rendered by the trial court or the same confirmed by the High Court. In our

opinion, the view taken by the trial court and upheld by the High Court in relation to

these accused persons was reasonable one and same cannot be said to be perverse in

any manner as such no interference by this court is called for.

12.Now we are required to consider cases of forty seven respondents in these appeals,

forty five respondents in Criminal Appeal No. 356 of 1999, viz., A-2, A-5, A-11, A-

12, A-13 A-14, A-15, A-16, A-17, A-18, A-19, A-21, A-22, A-27, A-29, A-31, A-32, A-

33, A-36, A-39, A-40, A-42, A-43, A-45, A-48, A-50, A-52, A-55, A-56, A-57, A-58, A-

65, A-66, A-67, A-68, A-69, A-72, A-73, A-76, A-80, A-82, A-85, A-86, A-92, A-93,

and two respondents, viz. A-1 and A-24 in Criminal Appeal No.357 of 1999.

13.First we proceed to consider the cases of two respondents, viz., R. Prasad [A-1] and

R. Anjaiah [A-24] in Criminal Appeal No. 357 of 1999, who are respondent nos. 1 & 5

therein respectively.

14.So far as A-1 is concerned, the prosecution has placed reliance upon the evidence of

three witnesses, viz., Munnangi Ankaiah [PW-2], Pilli Mahalaxmi [PW-58] and

Duddu Subbulu [PW-59]. PW-2 has stated about his own assailant and assailants of

D-4 and D-5. So far as A-1 is concerned, as per prosecution case, he was not the

assailant of D-1 for which he was convicted by the trial court under Section 302 IPC.

PW-2 has nowhere stated in his evidence that this accused was present at or near the

place where D-1 was assaulted. According to his evidence he could not see who killed

D-1. This being the position, the evidence of this witness can be of no avail to the

prosecution for convicting this accused for the charge of murder of D-1.

15.The next witness in this regard is Pilli Mahalaxmi [PW-58]. This witness has

disclosed the name of Rayaneedi Prasad [A-1] for the first time in Sessions Court

after seven years of the date of the alleged occurrence as he did not disclose his name

in his statement made before the police as would appear from the evidence of two

investigating officers, viz., D. Sridhar Reddy [PW-102] and E. Purna Prakash [PW-

104] wherein they have categorically stated that this witness did not even mention

before them the name of A-1. Thus, no reliance can be placed on the evidence of this

witness so far the charge of murder against this accused is concerned.

16.Last witness is Duddu Subbulu [PW-59] who in his evidence in court has nowhere

disclosed the name of A-1 as such for convicting this accused for the charge of

murder his evidence cannot be relied upon. Thus to prove the charge of murder

against A-1 evidence of PWs. 2, 58 and 59 having not been found to be credible, and

there being no other evidence against him, we are of the view that the High Court

was quite justified in acquitting him of the charge under Section 302, IPC.

17.Coming now to the case of Rayani alias Gammathu Anjaiah [A-24] who has been

acquitted by the High Court of the charge under Section 302 IPC it may be stated

that to prove the charge under Section 302, IPC against this accused the prosecution

has placed reliance upon the evidence of two witnesses, viz., Munnangi Abraham

[PW-4] and Manda Pentaiah [PW-5].

18.Munnangi Abraham (PW-4) stated that a large number of Kammas, including all the

accused persons, were gathering under the neem tree and were armed with spears,

axes, sticks and casurina sticks. Apprehending that something untoward may

happen, when the witness started running towards the tank, accused Chatanti Subba

Rao (A-27), Puvvada Rattaiah Nageswara (A-57) and Puvvada Rattaiah (A-91) were

running behind him. The witness then stated that D-2 and D-3 were running and

accused Yarlagadda Butchinayudamma (A-14), Gammathy Anjaiaha (A-24),

Pothina Krishna Murthy (A-49), Yarlagadde Siviah (A-51), Daggupeti

Brahmanayudu (A-58) armed with sticks, axes and spears were chasing them

shouting that they should be done to death. During the course of cross-examination,

it was suggested to the witness that in his statement made before the police he did not

state that he was chased by the accused persons which suggestion was denied by him

though Investigation Officer, PW-104 deposed that PW-4 did not state before him

that some of the Kammas chased him. No suggestion was given to the witness that he

did not make any statement before the police that the aforesaid accused persons,

including A-24, chased D-2 and D-3. Thus the statement of this witness in court that

the aforesaid accused persons, including A-24, chased D-2 and D-3 is quite consistent

with his statement made before the police and shows complicity of A-24 to prove the

charge of murder, as such we do not find any ground to reject his evidence so far

charge of murder against A-24 is concerned.

19.Another witness to prove the charge of murder against A-24 is Manda Pentaiah

[P.W. 5]. This witness categorically stated in his evidence that nine accused persons

named by him including A-24 stabbed Tella Moshe (D-2) with spear when he was

hiding himself in a manure heap. During the course of cross examination the witness

admitted that he did not state before the police or C.B. C.I.D Police about the nine

Kammas assaulting D-2, while he was hiding himself in a manure heap. From the

aforesaid statement it cannot be said that the witness had not stated before the police

that the nine Kammas, including A-24 assaulted D-2, rather it appears that he did not

state before the police that at the time when D-2 was assaulted by the nine Kammas

he was hiding himself in manure heap. Thus we find that the statement of this

witness in court that A-24 and other eight Kammas assaulted D-2 with spears is

consistent his with previous statement and the same is corroborated by medical

evidence.

20.Thus, we are of the view that prosecution has succeeded in proving its case beyond

reasonable doubt against A-24 so far as the charge of murder of D-2 is concerned and

the impugned judgment rendered by the High Court acquitting him of the charge

under Section 302 IPC suffers from the vice of perversity.

21.Now we proceed to consider cases of 47 accused persons, i.e., forty five accused

persons of Criminal Appeal No. 356 of 1999 and two persons of Criminal Appeal No.

357 of 1999 in relation to the charge under Section 148 I.P.C. A-1 has been named by

Tella Mariyamma [PW-14], Tella Victoria [PW-16], Duddu Sulochna [PW-21], Tella

Bennu [PW-45], Tella Singaiah [PW-51], Tella Bujji [PW-53], Duddu Issack [PW-

57], Duddu Makaiah [PW-66], Duddu Bhaskar Rao [PW-72], Pandiri Nageswara

Rao [PW-76], Tella Papaiah [PW-78] and Kommuri Lyman [PW-79] as member of

unlawful assembly. A-2 was identified by Munnangi Laxmaiah [PW-15], Tella

Victoria [PW-16], Tella Salomi [PW-30], Tella Singaiah [PW-51] and Duddu

Makaiah [PW-66] who have specifically stated that this accused was present at the

place of occurrence and was armed with lathi. A-5 was been named by Tella

Soloman [PW-12], Tella Yesobu [PW-32] and Tella Subba [PW-55] as a member of

the unlawful assembly and was armed with a stick. So far as A-11 is concerned, no

witness stated that he was member of unlawful assembly. A-12 was identified by PW-

38 and PW-68 as a person who was present at the place of occurrence with a spear.

A-13 was identified by Tella Moshe [PW-47] and Duddu Prasad [PW-68] as a person

present at the time of the occurrence with a spear. A-14, according to the evidence of

Tella Sundaramma [PW-34] and Tella Moshe [PW-38] was armed with an axe and

was present at the time of the occurrence. A-15 was identified as a member of

unlawful assembly armed with a stick by Duddu Veeramme [PW-22] and Duddu

Prabhakar [PW-23]. About A-16, Tella Moshe [PW-47] and Duddu Makaiah [PW-

66] have stated that this accused was member of the unlawful assembly. A-17 was

identified by Duddu Makaiah [PW-66] and Kommuri Lyman [PW-79] as a person

who was present at the time of the occurrence with other accused persons. A-18 was

identified by Pilli Mahalakshmi [PW-58] and Duddu Bennu [PW-61] as a member of

the unlawful assembly who was armed with axe. A-19 was identified by Munnangi

Laxmaiah [PW-15] and Benthat Beeraiah [PW-18] as a person who was at the place

of occurrence along with other accused persons. A-21 was identified by Pilli Mastan

[PW-25] and PW-58 as a person who was present at the place of occurrence along

with other accused persons. About A-22, Tella Mariyamma [PW-14] stated that he

was member of the unlawful assembly and was armed with a stick. So far as A-24 is

concerned, he was identified as a member of unlawful assembly as well besides

assailant by PW-4 and PW-5. A-27 was identified by Tella Yebu [PW-10], Munnangi

Suvatratha [PW-20] and Tella Bennu [PW-45] as a person armed with an axe. A-29

who was identified by Tella Prakasam [PW-35] and Tella Sundaramma [PW-38] as a

person who was armed with spear. A-31 was identified by PW-38 as a person armed

with an axe. A-32 has been named by PW-15 as a person present along with accused

person. So far as A-33 is concerned, no witness has stated that he was a member of

the unlawful assembly. A-36 was named by Tella Ammaiah [PW-62] who was not

examined by the police and no explanation is forthcoming for the same. A-39 was

identified by PW-15, PW-35 and Duddu Yacob [PW-42] as a person who was present

along with other accused persons and armed with spear. So far A-40 is concerned no

witness stated that he was member of unlawful assembly. A-42 was identified by

Duddu Prabhakar [PW-23], Thella Leelamma [PW-24], Tella Sujanamma [PW-26],

PW-28, PW-35 and Duddu Marthamma [PW-48] as a member of the unlawful

assembly. A-43 was identified by PW-15, Tella Ankamma [PW-63] and Kommuri

Lyman [PW-79] as a person present with other accused persons. A-45 was identified

to be member of unlawful assembly by a solitary witness Tella Prakasanm [PW-35].

A-48 was named by PW-3 and PW-47 as a person who was present along with other

accused persons. A-50 was identified by PW-13, PW-16, Duddu Sulochana [PW-17]

and PW-79 as a member of the unlawful assembly. A-52 was identified by Tella

Anandam [PW-39] as a person present with other accused persons. A-55 was named

by PW-17 and Duddu George [PW-41] as a person present along with other accused

persons. A-56 was identified by PW-15 and Tella Singaiah [PW-51] as a member of

unlawful assembly. A-57 has been named by Tella Kanthamma [PW-13], PW-15 and

Tella Anandam [PW-39] as a person present along with other accused persons. A-58

was identified by the solitary witness PW-79. A-65 was identified by Tella Yacob

[PW-31] and Duddu Issack [PW-57] as a member of the unlawful assembly. A-66

was identified by PW-14 and Tella Leelamma [PW-24] as a person present along with

other accused persons. So far A-67 is concerned, no witness stated that he was

member of the unlawful assembly. A-68 has been identified by Duddu Bennu [PW-

61] as a member of unlawful assembly. A-69 was named by PW-15, PW-20, Katti

Chandraiah [PW-21], PW-35, Duddu Masthnamma [PW-40], PW-45 and Tella Bujji

[PW-53] as a person present along with other accused persons. A-72 was identified

by Tella Symon [PW-7] and Benthat Veeraiah [PW-18] as a member of unlawful

assembly. A-73 was named by Pilli Mastan [PW-25] and Tella Yesobu [PW-32] as a

person who was present with other accused persons. A-76 was identified as a

member of the unlawful assembly by PW-32 alone. Likewise A-80 was identified as a

member of unlawful assembly by PW-57 alone. A-82 was identified by PW-15 and

PW-41 to be a person who was present along with the accused persons. A-85 was

named by Tella Rebunu [PW-36], PW-39 and PW-58 as a member of the unlawful

assembly. A-86 was identified by PW-13, PW-16, PW-17, PW-41 and Tella Yesu

[PW-74] as a person who was present with other accused persons. A-92 is said to

have been identified by PW-18 alone. So far A-93 is concerned no witness stated that

he was member of the unlawful assembly.

22.In this way, out of the aforesaid 45 respondents of Criminal Appeal No. 356 of 1999

who were facing charge under Section 148 I.P.C., A-22 (Respondent No-13), A-31

(Respondent No-16), A-32 (Respondent No.-17), A-45 (Respondent No-26), A-52

(Respondent No-30), A-58 (Respondent No. 34), A-68 (Respondent No-39), A-76

(Respondent No-43), A-80 (Respondent No-44) and A-92 (Respondent No-49) have

been identified as a member of unlawful assembly by a solitary witness, as such it is

not safe to place reliance thereon in the facts and circumstances of the present case.

So far A-11 (Respondent No. 3), A-33 (Respondent No-18), A-40 (Respondent No-22),

A-67 (Respondent No-38) and A-93 (Respondent No-50) are concerned, no witness

stated that they were members of unlawful assembly. As such it is not possible to

convict them for the charge under Section 148 I.P.C. As regards, A-36 (Respondent

No-20) it appears that the sole witness examined during trial was not examined by the

Police and in absence of any explanation for the same, it is not possible to place

reliance upon his evidence.

23.Thus, we are of the view that the order of acquittal passed by the High Court in

relation to the aforesaid sixteen accused persons of Criminal Appeal No. 356 of 1999

acquitting them of the charge under Section 148 I.P.C. cannot be said to be perverse

in any manner.

24.So far as the remaining accused persons, viz., twenty nine accused persons of

Criminal Appeal No. 356 of 1999 and two, viz., A-1 and A-24 of Criminal Appeal No.

357 of 1999 are concerned, having perused the evidence of witnesses, we are of the

view that prosecution has succeeded in proving the charge under Section 148 I.P.C.

and High Court was not justified in acquitting them.

25.In the result, Criminal Appeal No. 356 of 1999 against respondent Nos. 19, 25, 28, 35

and 48 is held to have abated in view of the fact that they died during the pendency of

appeal and the appeal is dismissed against Respondent Nos. 3, 13, 16, 17, 18, 20, 22,

26, 30, 34, 38, 39, 43, 44, 49 and 50. The appeal against the remaining twenty nine

respondents is allowed, the impugned order of acquittal passed by the High Court

acquitting them of the charge under Section 148 IPC is set aside and the order of

their conviction under Section 148 recorded by the trial court is restored. Criminal

Appeal No. 357 of 1999 in relation to respondent Nos. 2, 3 and 4 is held to have

abated in view of the fact that they died during the pendency of this appeal and the

appeal filed against respondent No. 1 is dismissed so far as charge under Section 302

I.P.C. is concerned but allowed in relation to charge under Section 148 I.P.C., the

judgment of acquittal rendered by the High Court in relation to the charge under

Section 148 I.P.C is set aside and his conviction under Section 148 I.P.C. recorded by

the Trial Court is restored. But so far as appeal in relation to respondent no. 5 is

concerned, the same is allowed, the impugned order passed by the High Court

acquitting him of the charges under Section 302 and 148, IPC is set aside and the

order of Trial Court convicting him under Section 302 and 148, IPC is restored. Bail

bonds of the said respondents of Criminal Appeal Nos. 356 of 1999 and Criminal

Appeal Nos. 357 of 1999 in relation to whom conviction recorded by Trial Court has

been restored, are cancelled and they are directed to be taken into custody forthwith

to serve out the remaining period of sentence for which the matter must be reported

to this Court within three months from the date of receipt of this order by the trial

court. The other respondents of these appeals are discharged from the liability of bail

bonds. Criminal Appeal No. 358 of 1999 in relation to respondent nos. 1, 3 and 15 is

held to have abated in view of the fact that they died during the pendency of this

appeal. The appeal in relation to the remaining seventeen respondents is dismissed

and they are discharged from the liability of bail bonds.

26.In view of the afore-mentioned order passed in the appeals, it is not necessary to pass

any further order in the Special Leave Petition [Crl.] Nos. 3788-90 of 1998 which are

accordingly disposed of.

…………………… J.

[B.N. AGRAWAL]

…………………… J.

[G.S. SINGHVI]

December 19, 2008

NEW DELHI.