Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Gamini Bala Koteswara Rao @ Balakotaiah ... on 2 November, 2007
Author: K.C. Bhanu
Bench: K.C. Bhanu
JUDGMENT K.C. Bhanu, J.
1. Criminal Appeal No. 1280 of 2005 is filed by the Public Prosecutor, High Court of Andhra Pradesh under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') challenging the judgment of acquittal dated 05.09.2003 in Sessions Case No. 383 of 1996 on the file of the I Additional Sessions Judge, Ongole, Prakasam district, whereas the Criminal Revision Case No. 1622 of 2004 is filed under Sections 397 and 401 Cr.P.C. by P.W. 1 in the Sessions Case, who the complainant, against the same judgment of acquittal.
2. The brief facts as delineated by the prosecution witnesses may be stated as follows:
Soodidela Satyanarayana Reddy @ Narapu Reddy (hereinafter referred to as 'the deceased') was one of the contestants for the post of Mandal Parishad Territorial Constituency member of Illapavuluru as Congress-I candidate. A.6-Mandalapu Venkateswarlu was also a contestant for the said post as the Telugu Desam Party candidate in that election. On 6.3.1995, the election was going on as it commenced at 7.00 AM. The deceased was standing near bore well pump situated opposite to the polling station i.e. school, on northern side. P.W. 5-P. Soubhagyamma, a vegetable vendor, was also standing on the northern side of the bore well with a vegetable basket. A. 1 came from the side of the village temple in front of the deceased holding a stone, caught hold of tuft of the deceased with his left hand and hit with the stone on his left side forehead. Thereafter, A. 1 picked up a knife from his waist and stabbed the deceased on left side of his chest. In the mean time, A. 2 came in front of the deceased with an axe and hacked on backside of head of deceased. A. 3 also attacked the deceased with an axe by hacking him on backside of his head. Again, A. 1 stabbed the deceased with knife underneath back side of left shoulder. Thereafter, P.Ws. 6, 7 and some others carried the deceased on hands as he was in a breathing stage. After some distance, the deceased lost his breath and therefore they laid the body on the ground. Thereafter, it is alleged that some of the accused pelted stones against some of the prosecution witnesses, who sustained injuries. The police who were posted on patrolling duty at the school came out and on seeing them all the accused ran away.
P.W. 22 - the Sub Inspector of Police, Chimakurthy at the relevant point of time of the incident, who was on bundobust duty in connection with the elections, received the information with regard to death of the deceased and so he rushed to the scene of occurrence at about 9.00 AM and recorded Ex. P1-statement from P.W. 1. He sent Ex. P1 to Cheemakurthy police station for registration of crime and it was registered as crime No. 6 of 1995. He also informed about the occurrence to P.W. 23-Inspector of Police, who rushed to the scene of occurrence at about 10.15 AM. He instructed the Assistant Sub-Inspector of Police, who was present there to send the injured to Government Hospital, Ongole for treatment, observed the scene of occurrence in the presence of P.W. 21 and others under Ex. P17, seized the blood stained stones and other stones, blood stained and control earth and a tobacco cigar at the scene of occurrence, got photographed the scene of occurrence as well as the dead body, examined some of the witnesses and recorded their statements. He conducted inquest on the dead body from 3.30 PM to 6.00 PM and during inquest he seized blood stained clothes of the deceased and some currency notes. Thereafter, he sent the dead body for post mortem examination.
P.W. 13 is the Doctor conducted autopsy on the dead body of the deceased and opined that the deceased died as a result of shock and haemorrhage due to multiple ante-mortem injuries including the injury to vital organ left lung. P.W. 14 is the Doctor, who examined P.Ws. 2 to 4 and issued wound certificates. The Inspector of Police arrested some of the accused at 5.00 PM on 8.3.1995 and sent them to Court. He sent material objects to the Forensic Science Laboratory. On 29.3.1999 at about 12.30 noon, he arrested some other accused and in pursuance of their confession, certain weapons of offence were seized. He issued requisition to the concerned Magistrate to hold test identification parade. Accordingly, P.W. 20 conducted the test identification proceedings. After receipt of report from the Forensic Science Laboratory, wound certificates, post mortem report and completion of investigation, he laid the charge sheet.
3. The trial Court framed the following charges against the accused.
Firstly, that on 06.03.1995 at about 7.00 AM, near M.P.P. School in Rangasaipuram of Gadiparthivaripalem village, A. 1 to A. 20 were members of an unlawful assembly , and did in prosecution of the common object of such assembly to wit, to do away with the life of the deceased Soodidela Satyanarayanareddy @ Narapureddy, committed the offence of rioting and at that time, were armed with deadly weapons or weapons of offence like to cause death to wit, axes, knives, sticks, stones, etc. and thereby committed an offence under Section 148 I.P.C.
Secondly, that on the same day, at the same time and place mentioned in 1st charge, A. 1 to A. 3 did commit murder by intentionally or knowingly causing death of deceased Soodidela Satyanarayanareddy @ Narapureddy and thereby committed an offence punishable under Section 302 I.P.C.
Thirdly, that on the same day, at the same time and place mentioned in 1st charge, A. 4 to A. 9 voluntarily caused hurt to P.W. 1 by means of stones which are instruments for beating used as weapons of offence likely to cause death and thereby committed an offence under Section 324 I.P.C.
Fourthly, that on the same day, at the same time and place mentioned in 1st charge, A. 9 to A. 11 voluntarily caused hurt to P.W. 2 by means of axe, stones and sticks respectively, which are instruments for cutting and beating respectively, used as weapons of offence likely to cause death and thereby committed an offence punishable under Section 324 I.P.C.
Fifthly, that on the same day, at the same time and place mentioned in 1st charge, A. 17 to A. 19 voluntarily caused hurt to P.W. 3 by means of stones, which are instruments for beating, used as weapons of offence likely to cause death and thereby committed an offence punishable under Section 324 I.P.C.
Sixthly, that on the same day, at the same time and place mentioned in 1st charge, A.20 voluntarily caused hurt to P.W. 4 by means of stones, which are instruments for beating, used as weapon of offence likely to cause death and thereby committed an offence punishable under Section 324 I.P.C.
Lastly, that on the same day, at the same time and place mentioned in 1st charge, A. 4 to A. 20 were members of an unlawful assembly and in prosecution of the common object of which viz. some of the members viz. A. 1 to A.3 committed an offence i.e. committed the murder of deceased Soodidela Satyanarayanareddy @ Narapureddy, which they knew likely to be committed in prosecution of the common object of the said assembly and thereby under Section 149 IPC they are guilty of committing the said offence punishable under Section 302 IPC.
When the charges were read over and explained to the respective accused in telugu, they pleaded not guilty and claimed to be tried.
4. To substantiate its case, prosecution examined P.Ws. 1 to 24 and got marked Exs.Pl to P26 besides case property M.Os. 1 to 17. After closure of the prosecution side evidence, the accused were examined under Section 313 Cr.P.C., but they denied the offence and pleaded their innocence. On behalf of accused, no witness was examined, but Exs. D1 to D3 were marked.
5. On appreciation of the evidence, the trial Court came to the conclusion that there was no satisfactory evidence to believe that A. 1 to A. 3 were responsible for inflicting injuries on the deceased; that the overt-acts attributed against A. 4, A. 5, A. 7 to A.20"were caused in the free fight in commotion resulting in pelting of stones by two groups; that the evidence of P.Ws. 1 and 5 would only go to show that the deceased sustained only five injuries whereas as per the post mortem report, Doctor found 8 injuries which has not been explained by the prosecution; that the evidence of P.Ws. 1 and 5 cannot be taken as a basis to convict the accused for want of corroboration from the independent witnesses and accordingly acquitted the accused of all charges levelled against them. Challenging the same, the present appeal and revision case are preferred by the Prosecution and the complainant respectively.
6. The learned Public Prosecutor contended that the scene of occurrence is not seriously disputed by the accused; that P.Ws. 1 and 5 are the eye-witnesses to the incident relating the attack on the deceased and further P.W. 1 is the injured witness; that there is no reason for them to implicate A. 1 to A. 3 falsely leaving the real assailants; that within two hours after the incident, the earliest version of the incident has been clearly stated by P.W. 1 in Ex. P1 and the earliest version of the incident is completely in corroboration with the evidence of P.W. 1 in all respects; that the evidence of P.W. 1 is lent support from the evidence of P.W. 5, who is not related to the deceased and her presence at the time of the incident is quite probable and natural.
He further contended that P.Ws. 1 and 5 and the deceased, no doubt, belong to one particular political party, but that does not mean that they have implicated all the leaders of the opposite group; that when the evidence of P.Ws. 1 and 5 is found to be true and trustworthy, there is no need for any corroboration from any independent witnesses; that even if P.Ws. 1 and 5 made any improvements, they 40 not go to the root of the prosecution case so as to acquit the accused, and that improvements or inconsistencies are bound to occur even in the case of truthful witnesses when they were made to depose about the incident that took place about 8 years back. He further contended that the trial Court placed much reliance on the evidence of P.Ws. 12 and 16 and came to the conclusion that there was a free fight at the time of the incident; that the eyewitnesses' account need not be disbelieved on the ground that they have not accounted for all the injuries; that the main fabric of prosecution is not in any way shattered and there is a ring of truth in the evidence of P.Ws. 1 and 5. Hence, he prayed to set aside the impugned judgment of acquittal and convict A. 1 to A. 3 against whom specific overt-acts are attributed.
7. On the other hand, the learned Counsel for the respondents contended that after an elaborate consideration of the evidence on record and after considering the demeanor of the alleged eyewitnesses and after giving substantial and sufficient reasons, the trial Court acquitted the accused by extending benefit of doubt; that the prosecution suppressed the genesis of the occurrence and distorted version of the incident has been put forth during the course of trial which is highly improbable; that the narration of the attack made on the deceased as spoken to by P.W. 1 is totally an improvement; that P.W. 1 is an interested and partisan witness, belonging to the group of the deceased, and the deceased is no other than junior paternal uncle of P.W. 1.
He further contended that that no test identification parade was conducted in respect of weapons used in commission of the offence immediately after their seizure and so identifying the weapons by the eye-witnesses after lapse of 8 years would indicate that they are not truthful witnesses; that Ex. P1 can be said to be brought into existence during the course of investigation in view of the fact that before recording Ex. P1, P.W. 22-Sub Inspector of Police enquired about the incident with several persons including the police personnel present at the time of the incident and that the information said to have been given by P.Ws. 12 and 16 amounts to First Information Report and basing on their information, a general diary entry was made in the station; that the entry made in the Station General Diary has been suppressed by prosecution and therefore an adverse inference has to be drawn for non-production of the Station General Diary.
He further contended that the ocular testimony is not in corroboration with the medical evidence in view of the fact that the deceased sustained as many as 8 injuries whereas the prosecution accounted for only 5 injuries, and therefore P.Ws. 1 and 5 are not eyewitnesses and they are planted witnesses; that the evidence of P.Ws. 12 and 16 would go to show that there was free fight between the accused party and the deceased party and P.W. 1 sustained only a simple injury. He further contended that as per the evidence of P.W. 10, some hired killers attacked the deceased and killed him; that the injured witnesses did not reveal to the Doctor with regard to names of the assailants who attacked them; that the evidence of P.W. 12, who is the Assistant Sub Inspector of Police would go to show that the accused were arrested immediately after the incident and therefore the arrest and recovery are false; that the evidence of P.Ws. 12 and 16 would clearly indicate that within half-an-hour after the incident, police came to the scene of occurrence and if that is the case, no explanation is forthcoming for not recording any statement till 9.00 AM; that the time of death is also not established beyond reasonable doubt in view of the fact that some witnesses stated that the incident took place before commencement of poll whereas some other witnesses stated that the incident took place after the poll was commenced; that P.W. 5 is a chance witness and when she started at 7.00 AM with vegetable basket from her house, it would not be possible for her to witness the incident and the presence of P.W. 1 as spoken to by P.Ws. 2 to 4 and 6 to 8 is clearly an improvement. Hence, he prays to dismiss the Criminal Appeal as well as the Revision Case.
8. An appeal against acquittal, which turns on the facts, would clearly succeed where it was clearly wrong and involved a miscarriage of justice. The High Court will only interfere, if it is proved without any doubt not only that the accused are guilty, but that they have been acquitted on unreasonable grounds. Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper reasons and consideration to matters, such as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of accused to the benefit of any doubt, and (if) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
9. On this aspect, it is pertinent to refer to a decision of the Apex Court reported in State of Madhya Pradesh v. Bacchudas @ Balaram and Ors. 2007 AIR SCW 1302 wherein it is observed as follows:
There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not....
So, from the above decision, it is clear that in considering an appeal against judgment of acquittal, there must be compelling and substantial reasons for interference.
10. Bearing the above principles in mind, it has to be seen whether the trial Court is justified in acquitting the accused especially A. 1 to A. 3 disbelieving the evidence of P.Ws. 1 and 5?
Scene of Occurrence:
11. The scene of occurrence is near school at Gadiparthivaripalem which is a hamlet of Illapavaluru village, Prakasam district. P.W. 21 is one of the mediators who was present when police observed the scene of occurrence at about 9.00 or 9.30 AM on 6.3.1995. He was also the Village Administrative Officer of Illapavuluru village. Ex.P17 is the observation of scene of occurrence report. P.W. 21 categorically stated that the scene of occurrence is in front of High School building in Gudiparthivaripalem. Police seized control earth, blood stained earth, stones and one cigar. As seen from Ex.P17, scene of occurrence is situated at a distance of 76 feet to the northern side on vacant site to the Mandal Parishad Upper Primary School of Gadiparthivaripalem. Rama temple is also located at a distance of 50 feet from the scene of occurrence. So also there is a bore pipe to the north of the scene of occurrence at a distance of 21 feet. Practically, the evidence of P.Ws. 21 and 23 and the recitals in Ex. P17 remained unchallenged. Except suggesting that inquest report was prepared in police station and P.W. 21 did not visit the scene of occurrence, nothing has been elicited to discredit their testimony. The blood stained soil contained human blood, as per Ex.P24 which is the report of Forensic Science Laboratory. Exs.P25 and P26 are positive and negative photographs with regard to the scene of occurrence and dead body. So, from the above evidence, the scene of occurrence is established beyond reasonable doubt.
Inquest:
12. P.W. 21 is one of the inquest mediators who was present when P.W. 23 conducted inquest on the dead body of the deceased from 3.30 PM to 6.00 PM. Police examined some of the witnesses during inquest. P.W. 23 seized blood stained clothes, certain currency notes and matchbox. Ex. P18 is the inquest report. As per Ex. P18, the inquest mediators opined that the deceased died as a result of the injuries sustained by him.
Post Mortem Examination:
13. P.W. 13 is the Doctor who conducted autopsy on the dead body of deceased on 7.3.1995 at 10.30 AM and found the following external ante-mortem injuries.
1) incised injury 2" x 1/2" on lower border of left color bone, extending downwards, backwards obliquely in the mid clavicular bone, through II inter costal space into the upper lobe of left lung, margins clean cut spindle shaped, cut section showed congestion of tissues injury in the lungs (L) is 1" x 1/2" size;
2) incised injury 2" x 1/2" on left infrascapular area at the level of 4th thoracic vertebra 3" away from midline, extending obliquely downwards medially entered the plura cavity through 4th inter costal space;
3) incised injury 2" x 1/2" on front of lower third of left upper arm, muscle deep;
4) lacerated injury 2" x 1" on left temple, muscle deep;
5) contusion 2" x 1" on right temple;
6) incised injury 2" x 1/2" on left half of occipital area 2" away from left ear;
7) incised injury 2" x 1/2" on left half of occipital area 1" below and medial to injury No. 6 margins clean cut, spindle shaped, scalp deep;
8) incised injury 2" x 1/2" two in number on left shoulder pronounce. Muscle deep margins clean cut, on cut section congestion of tissues present.
On internal examination, he found incised injury to left lung. He opined that the deceased would appear to have died of shock and haemorrhage and due to multiple injuries and the injuries to vital organ left lung. - The approximate time of death is about 24 to 30 hours prior to the post mortem examination. Ex. P2 is the post mortem certificate. He further stated that the injury Nos. 1 to 8 are possible by stabbing with knife like M.O. 1, whereas the injury Nos. 6 and 7 are possible with a sharp edged weapon like axe like M.Os. 2 and 3, and that all the injuries are sufficient to cause death in the ordinary course of nature. Nothing has been elicited to discredit the testimony of P.W. 13 and the recitals in Ex. P2. From the medical evidence, the homicidal nature of death of the deceased is established beyond reasonable doubt.
Facts Which are Not in Dispute:
14. The deceased Soodidela Satyanarayana Reddy @ Narapu Reddy was a contesting candidate for the post of Mandal Parishad Territorial Constituency member of Illapavuluru village on behalf of Congress-I party, whereas A. 6-Mandalapu Venkateswarlu (died during pendency of case before the trial Court) was contesting for the said post as the Telugu Desam Party candidate. 6.3.1995 was the polling date. The polling was commenced at 7.00 AM and the venue of polling booth is the Upper Primary School in the village. P.W. 12, who was the Assistant Sub Inspector of Police, Ongole II Town police station, was deputed to Gadiparthivaripalem on bundobust duty in connection with Z.P.T.C. and M.P.T.C. elections. P.W. 16 was the Constable posted to bundobust duty at the polling booth Nos. 37 and 38. He along with P.W. 12 went to the village on 5.3.1995.
15. P.W. 11 was the Presiding Officer for polling booth No. 38 and he was on polling duty on 6.3.1995. At about 7.00 AM, the booth was opened for conducting election process. P.W. 10 was the polling clerk who was present along with P.W. 11. P.W. 9 is the Presiding Officer to the Polling booth.
16. There were two groups in the village. All the accused except A. 6 are supporters of Telugu Desam Party, whereas A. 6 was the contesting candidate on behalf of the said party. A. 1, A. 2, A. 7 to A. 10 and A. 14 to A.20 never contested in elections nor held any post in the village. P.Ws. 1 to 8 were supporters of Congress-I party.
Charge Under Section 302 I.P.C. Against A. 1 to A. 3:
17. P.Ws. 1 and 5 are eye-witnesses to the attack made on the deceased by A. 1 to A. 3. P.Ws. 2, 3, 4, 6 and 7 speak about some of the accused throwing stones on some of the prosecution witnesses. They came to the scene of occurrence on hearing the cries of P.W. 1. It is not in dispute that they did not say anything as to which accused attacked or caused injuries to the deceased. Therefore, their evidence is only with regard to charges under Sections 148 and 324 I.P.C. for causing injuries to some of the prosecution witnesses.
18. The deceased is no other than junior paternal uncle of P.W. 1. According to P.W. 1, the deceased was standing near bore well pump situated opposite to the polling booth on northern side and he was standing at some distance on south of the deceased so as to cast his vote. The incident is alleged to have taken place at about 7.00 AM. No doubt, there is a slight discrepancy with regard to time of taking place of the incident i.e. whether before the polling was commenced or after commencement of the polling. But, it is not material. When a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. The law is well settled that merely because the eye-witness is related and even an interested witness, his evidence cannot be thrown away or discarded on that ground. The Court has to scrutinize his evidence scrupulously before accepting the same. In the normal course of events, close relation would be the last person to spare the real assailant of his relation and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out. Therefore, in such circumstances, the Court has to scrutinize his evidence carefully and cautiously.
19. On this aspect, it is pertinent to refer to a decision of the Apex Court in Kalegura Padma Rao and Anr. v. The State of A.P. 2007 AIR SCW 1447 wherein it is held as follows: (para 8).
In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
20. The learned Counsel for the respondents relied on a decision in State of Punjab Gurmej Singh v. Jit Singh and Anr. 1995 Supreme Court Cases (Cri) 156 wherein it is held as follows:
...When interested witnesses are examined it is well-settled that the evidence has to be tested in the light of the probabilities and the previous statements and the surrounding circumstances....
21. On the other hand, the learned Public Prosecutor relied on a decision in State of U.P. v. Kishan Chand and Ors. 2004 Supreme Court Cases (Cri) 2013 wherein it is held as follows:
...By now, it is well settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.
22. The learned Public Prosecutor relied on another decision in Dani Singh and Ors. v. State of Bihar 2005 Supreme Court Cases (Cri) 127 wherein it is held as follows:
...Merely because the witnesses are related or friendly with the deceased, that will not be a ground to discard their evidence. The only thing the Court is required to do is to carefully scrutinize the evidence and find out if there is scope for taking a view about false implication. Further, since there are some exaggerations or minor discrepancies, that would not be sufficient to cast doubt on the evidence.
23. With regard to testimony of an injured witness, the learned Public Prosecutor relied on a decision in Nagarjit Ahir v. State of Bihar 2005 Cri.L.J. 904 wherein it is held as follows:
It was then submitted that in spite of the fact that large number of persons had assembled at the bank of the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased, or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony....
24. On the same aspect, the learned Public Prosecutor relied on the decision in State of U.P. v. Kishan Chand and Ors. case (4 supra) wherein it is held as follows: (para 10) That apart, PW 1 Shridhar and PW 8 Mizazi Lal are both independent and injured witnesses. The testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence. The injured witnesses were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony.
25. Bearing the above principles in mind, it has to be seen whether the evidence of P.W. 1 is found to be truthful and his presence at the relevant point of time of the incident at the scene of occurrence is found to be probable and acceptable. In evaluating and appreciating the evidence of an eye-witness, two important factors have to be borne in mind, viz. whether his presence at the time of the incident is natural and probable; and whether his explanation for going to the place of occurrence at the relevant point of time of the incident is acceptable.
26. According to P.W. 1, his house is situated at a distance of one furlong from the polling booth and he went to the scene of occurrence for the purpose of casting his vote in the panchayat elections. Admittedly, he did not participate in the elections. So also, he did not act as a polling agent on behalf of the deceased on the date of the incident. It is suggested to him that he was not present at the time of occurrence, but the same is denied. He also did not state to police when-he was examined under Section 161(3) Cr.P.C. that he went to the polling booth to cast his vote. But, in the earliest report Ex. P1, which was recorded by P.W. 22 at 9.00 AM on the date of the incident, P.W. 1 stated that he was present along with the deceased. Therefore, simply because did not state in his statement under Section 161(3) Cr.P.C. about the purpose for which he went to the place where polling was to be commenced, his presence at the time of the incident cannot be doubted in view of the fact that the deceased who was a contesting candidate is his close relative.
27. According to P.W. 1, at about 7.00 AM, the polling was to be commenced and when the deceased was standing near bore well pump situated opposite to the polling station viz. Upper Primary School, A. 1 came in front of the deceased from the village temple on western side holding a stone, caught hold of his tuft with left hand and hit him with the stone on left side of his forehead; thereafter, he threw the stone from the hand and picked up a knife from his waist and stabbed the deceased on left side of chest; on that the deceased sustained bleeding injury and bowed forward saying 'Amma'; that in the meantime, A. 2 came in front of the deceased with an axe and hacked on the back side of head of deceased when he was in bent posture; that A. 3 also attacked the deceased with an axe and hacked him on back side of his head from his front portion when the deceased was in bent posture. It is further evidence that while the deceased was still bending to ground due to the injuries, A. 1 again stabbed him with knife underneath the back side of left shoulder, as a result of which the deceased fell on the ground lying face towards ground; then he raised cries as his uncle was being killed; some of the persons present there shifted the deceased on their hands and after carrying to some distance, the deceased died, and so the persons who were carrying him laid him on the ground. It is his further evidence that at that time, A. 6, A. 9, A. 18 and A. 14 pelted stones against them from the stone heap and one of the stones hit him on his back, as a result he sustained injuries.
28. P.W. 19 is the Doctor, who examined P.W. 1 on 7.3.1995 and found 2" x 2" abrasion on middle of upper back. Ex. P12 is the wound certificate. He opined that the injury is simple in nature. The fact that P.W. 1 sustained the abrasion immediately after the death of the deceased is not specifically denied or disputed. So also, it is not the case of the accused that P.W. 1 sustained the said simple injury in some other manner at some other transaction at the hands of some other persons.
29. Ex. P1 is the report lodged by P.W. 1. Inter alia, it is stated in Ex.Pl that he was present with the deceased and at that time A. 1 came running to the deceased in front of the polling station; that A. 1 came with a stone, caught hold of hairs of deceased and beat him with the stone on left side of forehead and immediately he picked up a knife from his waist and stabbed the deceased on left side of chest and caused bleeding injury; A. 2 hacked on left back of head of deceased; A. 3 also beat the deceased with hands and thereupon sacked him with axe on back of his head; that A. 1 also stabbed the deceased with knife on his back below the left shoulder blade and on the back and caused bleeding injury; in the meantime, P.Ws. 4, 6 and 7 came there and they were shifting the deceased who was struggling for life; thereafter, A. 4, A. 5, A. 6 and A. 7 hurled stones on them.
30. There cannot be any dispute that First Information Report (F.I.R.) is a valuable piece of material inasmuch as it is the earliest version that can be compared with what is later told during trial. All variations and commissions can be considered in judging the truth or otherwise of the version. It is settled law that F.I.R. is not a substantive piece of evidence and it is an earlier statement of the maker and can always be used either to corroborate or contradict the evidence given by the first informant at the trial.
31. The learned Counsel for the respondents vehemently contended that F.I.R. was brought into existence during the course of investigation after due deliberations and therefore, it cannot be used to corroborate the evidence of P.W. 1. The basis for his argument is the admission made by P.W. 12-Assistant Sub Inspector of Police about his informing the incident to the C.I. of Police and also informing to the police party. According to P.W. 16-Police Constable, C.I. of Police Jaya Prasad came to the spot within one hour to conduct inquest over the dead body of deceased and he enquired the mob congregated at that place and came to him and enquired about the incident. P.W. 22 stated that he enquired with the persons including P.Ws. 12 and 16 before recording Ex. P1-statement of P.W. 1. Therefore, basing on the above evidence, the learned Counsel contended that having made an entry in the Station General Diary, the said record has not been produced inspite of the direction given by the trial Court.
32. It is not in dispute before this Court that in the trial Court, police filed a memo stating that the entry relating to Station General Diary on 6.3.1995 was destroyed and therefore they could not produce the same. The law is well settled that if F.I.R. is brought into existence during the course of investigation, it cannot be used for corroboration. But, there must be some evidence to show that even before registering Ex. P1, there was credible information with regard to a cognizable offence of the incident and that the report was given prior to Ex. P1 or that an entry relating to a cognizable offence has been entered into the Station General Diary.
33. On this aspect, the learned Counsel for the respondents relied on a decision in Sevi and Anr. v. State of Tamil Nadu and Anr. AIR 1981 Supreme Court 1236 wherein it is observed as follows:
...The Sub Inspector was unable to produce the relevant F.I.R. Book in Court notwithstanding the directions of the Court. The F.I.R. book, if produced, would have contained the necessary counterfoils corresponding to the F.I.R. produced in Court. The Sub Inspector when questioned stated that he searched for the counterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how any F.I.R. Book can disappear from a Police Station....
It is a decision where F.I.R. book was taken to the scene of occurrence and in those circumstances a doubt arose to examine the F.I.R. with reference to the counterfoil of the F.I.R. book, but that was not produced.
34. There cannot be any dispute that at all times F.I.R. book is supposed to be in the police station only. But, in this case, the facts are entirely different. It is not the case of P.W. 22 that he took the F.I.R. book along with him to the scene of occurrence. Therefore, the above decision has no application to the facts of the present case.
35. The learned Counsel for the respondents also relied on a decision in Mohan Lal and Ors. v. State of Rajasthan wherein it is held as follows:
...As has been stated earlier the witness categorically stated to the fact that he had given two statements, one at the police station and the other after the Thanedar came to the place of the occurrence and called Radhey Shyam Lohar and got a report written by Radhey Shyam Lohar. We fail to understand why the Thanedar took interest in calling somebody else for a written report by it and when he himself had gone to the police station and given a report obviously orally the so-called earlier report is not coming on record and the reasons for non-production of the said report is best known to the prosecution. No explanation has been offered as to why the earliest version has not been brought on record....
The above decision also has no application to the facts of the present case because it is a case where witnesses admitted about giving of two statements. That question does not arise in this case because P.W. 1 did not state that he gave report earlier to Ex. P.
36. The learned Counsel for the respondents relied on a decision in State of Uttar Pradesh v. Bhagwant Kishore Joshi wherein it is held as follows: (para 8) The first question is whether the enquiry made by him before he obtained the permission of the Magistrate was "investigation" within the meaning of the provisions of the Code of Criminal Procedure. Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence....
There is no dispute about the proposition of law.
37. The learned Counsel for the respondents also placed strong reliance on the decision in State of A.P. v. Punati Ramulu and Ors. 1994 Supp (1) Supreme Court Cases 590 wherein it is held as follows:
...In our opinion, the complaint, Ex. P1, could not be treated as the FIR in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162 CrPC. As a matter of fact, the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had "been brought into existence at Pamaidipadu itself, after due deliberation". Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues.
38. No doubt, receipt of information about a cognizable offence has to be noted in the Station General Diary. The Inspector therein did not make any-entry in the daily diary or record in the general diary about the information given by the Constable who was on bundobust duty. The above decision has no application to the facts of the present case in view of the fact that admittedly neither P.W. 22 nor P.W. 23 was present in the police station when they received the information. When P.W. 22 was on bundobust duty and proceeding towards Gadiparthivaripalem village, he received information about the death of the deceased. Therefore, there was no occasion for him to make the entry in the Station General Diary. It is not his case that soon before he received the information about the incident or any cognizable offence from P.Ws. 12 or 16 or any other police personnel before Ex. P1, he made an entry or got made an entry in the Station General Diary. Whereas when P.W. 23 was attending bundobust duty on Maddipadi village, he received the information about the incident at about 9.50 AM and then he rushed to the place of occurrence and reached there by 10.15 AM. So, from his evidence, it is clear that he was not present at the police station and he only received information through very high frequency set. He specifically stated that as the information received is vague, no G.D. entry was made. So, there is absolutely no evidence to show that any one of the police personnel made an entry in the Station General Diary when they received information either from P.Ws. 12, 16 or any other person of the village of Gadiparthivaripalem. Such is the case, question of producing the Station General Diary as directed by the learned Sessions Judge may not arise. No doubt, under Section 114(g) of the Indian Evidence Act, 1872, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Before drawing the said presumption it must be shown that there was evidence available and withholding such evidence is without any reasons. Therefore, in view of the aforesaid circumstances, adverse inference cannot be drawn for not producing the Station General Diary relating to the date of occurrence of the incident.
39. In the light of the foregoing discussion, the circumstances do not indicate that the police officer present in the police station received information about any cognizable offence with regard to death of the deceased and that an entry was made with regard to the information about the cognizable offence in the Station General Diary. Therefore, the contention of the learned Counsel for the respondents that Ex. P1 was brought into existence during the course of investigation after due deliberations and embezzlements cannot be accepted. When once the F.I.R. is found to be true and correct document and it is not shown to be brought into existence during the course of investigation, the recitals in Ex.Pl can be used to corroborate the evidence of P.W. 1. The recitals in Ex. P1 insofar as the specific oyert-acts of A. 1 to A. 3 are completely in corroboration with the evidence of P.W. 1.
40. No doubt, P.W. 1 made certain improvements during the course of his evidence. Those improvements are viz. he went to the polling booth to cast his vote; that he was standing on the south of the deceased; that the accused came from the side of the temple; that the deceased bent down saying 'Amma' when he was beaten on two occasions; that he cried as "Maa Babaini Champinaru" when the accused axed the deceased; that the deceased was lifted to a distance of 2 or 3 yards from the scene in the hands of their people; that which of Mandalapu Venkateswarlu either A. 6 or A. 14, that pelted stones; that A. 18 pelted stones; that P.W. 2 came to the spot and cried as "Maa Babaini Champinaru"; that there was a stone, heap at the scene of offence. The aforesaid aspects have not been stated by P.W. 1 before P.W. 23 when he was examined under Section 161(3) Cr.P.C. In our opinion, the improvements of such a nature are bound to present in the statement of a witness who was deposing about the occurrence of the incident after a gap of about 7 or 8 years. It is common experience that such improvements are invariably found in the testimony of even a wholly truthful witness when he is made to depose about the occurrence after gap of several years. The capacity of human brain to retain minute details of the occurrence varies from man to man. Therefore, the above omissions, in our opinion, are very innocuous and they do not affect the main substratum of the prosecution story. The main fabric of the prosecution case is that A. 1, in the first instance, beat the deceased with a stone on left side of forehead and stabbed with knife on his chest and also stabbed with knife on back side of the left shoulder, and that A. 2 hacked the deceased with axe on back side of head, and that A. 3 hacked with axe on back side of the deceased, is not in any manner affected. The above specific overt-acts attributed against A. 1 to A.3 are consistent from the stage of F.I.R. Further, the evidence of P.W. 1 is completely in corroboration with the evidence of P.W. 1 3-Doctor, who found incised injury on left lung on the lower border of left collar bone and left infrascapular area, front of lower third of left upper arm, left temple, right temple and two incised injuries on the occipital region and on left shoulder.
41. No doubt, P.W. 1 accounted only for 4 injuries whereas the deceased sustained as many as 8 injuries as per the Doctor's evidence. Simply because P.W. 1 has not accounted for the remaining 4 injuries, it cannot be a ground to disbelieve the evidence of P.W. 1 particularly in view of the fact that he might have observed only causing of the 4 injuries to the deceased by A. 1 to A.3 and so he deposed about the same. Therefore, from the medical evidence, the broad spectrum of the case lends assurance to the ocular testimony.
42. The learned Sessions Judge has given undue importance to the minor omissions. One such importance is that P.Ws. 1 and 5 did not make any whisper of any kind of expressions made by the accused at that particular moment and that the evidence of P.Ws. 1 and 5 is not corroborated. Conduct and behaviour of a witness vary from man to man. On the ground that a witness has not reacted in a particular way his evidence cannot be discredited. The defence has not succeeded in surfacing any material discrepancy or deviation during the course of cross-examination of P.Ws. 1 and 5. They stood to the test of touchstone of probabilities in their cross-examination. No suggestion was put to them that they were deposing falsely on account of the enmity with the accused. If really P.Ws. 1 and 5 want to perjure themselves, they could as well have stated in their evidence attributing specific overt-acts against A. 6, who is the contesting candidate and the main rival opponent of the deceased, and also stated that all the accused shared common object so as to eliminate the deceased instead of deposing overt-acts against A. 1 to A. 3. This, in our opinion, would go to show that P.Ws. 1 and 5 are witnesses of truth and they have deposed only with regard to the facts which they actually saw.
43. No doubt, in cases arising out of acute factions, persons unconnected with either faction do not care or dare to come forward as witnesses for fear of increasing the wrath of the other party. The Court should guard against the danger of convicting innocent persons on perjured testimony. In cases of group rivalries and enmities there is general tendency to rope in as many persons as possible and hence the court should scrutinize evidence carefully and where doubt arises benefit should be given to accused. But, in this case, from the beginning, it is the case of prosecution that it is A. 1 to A. 3 only who attacked the deceased with deadly weapons as a result of which he died. Even presence of A. 6, who is the opponent candidate in the election, is not spoken to by any of the prosecution witnesses at the time of attack made on the deceased. If really P.Ws. 1 and 5 want to implicate the accused falsely, their target would be against A.6 in the first instance and later some of the main leaders of the Telugu Desam Party. There is evidence on record which would go to show that A. 1, A. 2, A. 7 to A. 10, A. 14 to A. 20 never contested in any election nor held any post in the village. Except the fact that they are followers of the Telugu Desam Party, they were not even leaders in the village. In such situation, it is highly unbelievable that A. 1 to A. 3 were roped in or implicated falsely after due deliberations. Though P.W. 1 belonging to the group of the deceased and his close relative, he has no grouse or enmity against A. 1 to A. 3. After going through the evidence of P.W. 1 coupled with the circumstances of the case, we find no serious defect or infirmity or any striking improbabilities in his evidence. There is nothing in the evidence of P.Ws. 1 and 5 to indicate that there could be any reason for these witnesses to falsely implicate the accused. It is not expected that they would falsely implicate the accused and allow the real assailants of the deceased to be let off. 44. Further, the evidence of P.W. 1 is completely in corroboration with the evidence of P.W. 5 who is not related to the deceased. According to her, she reached the school where polling was going on, for selling vegetables and she was standing near bore well at the school and the deceased was also standing in front of the bore well; at that time, A. 1 came running by holding a stone in his right hand from the side of temple, caught hold of tuft of deceased with his left hand and hit on left forehead of deceased with the stone; he threw the stone on ground, took out a knife from his waist and stabbed on left side of the chest of deceased and caused bleeding injury; that A. 2 also hacked the deceased with an axe on back of head and A. 3 also hacked the deceased with an axe on the back on his head; that again A. 1 stabbed the deceased with a knife below the left shoulder, as a result, the deceased fell down.
45. No doubt, P.W. 5 also belongs to Congress-I party. Except the fact that she belongs to the party from which the deceased was contesting, there is no other reason for this witness to implicate the accused especially A. 1 to A.3. Her presence was spoken to by P.W. 1 in Ex. P1, which is the earliest report, and also in his evidence. No doubt, she was a chance witness, but on that ground her evidence cannot be discredited. Even if she may not be1 ordinarily present at the time and place when the incident took place, her evidence cannot be straightaway rejected on the ground that she is an interested and chance witness. At the most, such evidence requires to be closely scrutinised in order to find out whether she was in fact present at the relevant time and witnessed the incident or not.
46. P.W. 5 admitted in cross-examination that she started with vegetable basket at 7'O clock from her house and before coming to the scene of occurrence she sold some vegetables to 5 or 10 people and she came to the spot at 7.00 AM. A stray admission in cross-examination cannot be taken as a ground to discredit her testimony. Her entire evidence has to be taken into consideration. If the entire evidence is taken into consideration, it is clear that she came to the scene of occurrence at about 7.00 AM for selling vegetables. There is nothing unusual for a person like P.W. 5 to go to the polling booth for selling vegetables where invariably voters would to come for the purpose of exercising their franchise and there is possibility for the voters to purchase vegetables from a person like P.W. 5. Hence, her presence at the polling booth at the time of incident cannot be doubted. She has no axe to grind against any one of the accused. No enmity or grouse was attributed to this witness to speak false against the accused.
47. The other contention of the learned Counsel for the respondents is that P.Ws. 1 and 5 identified M.Os. 1 to 5, which are the weapons of offence used by A. 1 to A.3, after lapse of 8 years in the Court and so their evidence has to be disbelieved on that ground. Admittedly, after seizure of M.Os. 1 to 5, no test identification parade was conducted for P.Ws. 1 and 5 for identification of the weapons used by the accused in commission of offence. No doubt, P.Ws. 1 and 5 identified M.O. 1-kinfe, M.Os. 2 to 4-axes and M.O. 5-stone used by A. 1 to A. 3 in commission of the offence in the absence of any special or specific identification marks on them, which may be improbable in the absence of any test identification parade. But, simply because P.Ws. 1 and 5 have identified the weapons in the Court after a long lapse of time, that cannot be a ground to discredit their testimony if their presence is otherwise established. Therefore, the prosecution case cannot be dubbed on that ground.
48. It is one of the contentions raised by the learned Counsel for the respondents that P.Ws. 1 and 5 were giving a parrot like version of the incident and therefore their evidence has to be disbelieved. Though the accused are 20 in number, the specific overt-acts are attributed against 3 persons. If P.Ws. 1 and 5 had really witnessed the incident, it is not that much difficult for them to speak about the specific overt-acts in the same manner. The overt-acts are one accused caused two injuries and the other two caused one injury each. If the two witnesses speak about four specific overt-acts, it cannot be said to be a parrot-like version.
49. It is also contended by the learned Counsel for the respondents that the manner of attack on the deceased as spoken to by P.Ws. 1 and 5 is improbable in view of the medical evidence. P.W. 1 stated that A. 2 and A. 3 came in front of deceased and attacked the deceased. Under those circumstances, causing of injuries on back of head of deceased may not be possible. But, they have stated that at that time the deceased was on bending posture in view of the injury caused on the chest of deceased by A. 1. No doubt, P.W. 1 did not state before P.W. 23 that the deceased bent down when he was beated on two occasions but it is a minor omission which cannot be given undue importance. Therefore, the contention of the learned Counsel is wholly untenable on this aspect.
Charge Under Section 302 Read with 149 I.P.C.:
50. Coming to the offence under Section 302 read with 149 I.P.C. against A. 4 to A. 20, there is no evidence to show that they were members of an unlawful assembly and the murder of the deceased was committed in prosecution of the common object of that assembly. It is difficult for the prosecution to adduce direct evidence in this regard. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. Presence of A.4 to A.20 either before, at or after the attack made on the deceased, has not been spoken to by P.Ws. 1 and 5. All these accused were not shown to be armed with any deadly weapons. All these accused have not come to the scene of occurrence together or they left the scene of occurrence thereafter. Therefore, in the absence of any such evidence, it can be said that A. 4 to A. 20 cannot be said to be members of the unlawful assembly and their object was to eliminate the deceased. Hence, the charge under Section 302 read with 149 IPC fails against A. 4 to A. 20.
Charges for the Offence Under Section 324 I.P.C. for Causing Injuries to P.Ws. 1, 2, 3 and 4:
51. P.Ws. 2 to 4, 6, 7 and 8 spoke about hurling of stone by some of the accused. P.W. 2 stated that A. 7, A. 9, A. 10 and A. 18 pelted stones and A. 10 goaded others to kill the deceased; that A. 9 beat him with stick. But, he did not state to police that A. 10, A. 11 and A. 18 pelted stones and that A. 9 beat him with stick. Though he sustained injury on occipital bone, right leg and right side of back, they were not shown to have been caused by any one of the accused because for the first time he stated that A. 10, A. 11 and A. 18 pelted stones and A. 9 beat him with stick, which is clearly an improvement, and that omission merits consideration. But, the fact remains that he was present immediately after the incident. Because several persons present there hurled stones against the prosecution witnesses, it may not be possible to name any particular accused in hurling stones.
52. P.W. 3 stated that A. 17 and A. 18 pelted stones. But, according to P.W. 14-Doctor, he sustained contusion on left upper arm, left scapula and left infra scapular region. He did not specifically state that because of the pelting stones by A. 17 to A. 19, he sustained those injuries. On the other hand, he admitted that nearly 20 to 30 persons were pelting stones at the scene of occurrence. Therefore, in the absence of any evidence that he sustained the injuries when A. 17 to A. 19 pelted stones, they cannot be convicted for the offence under Section 324 I.P.C.
53. Coming to the evidence of P.W. 4, he stated that A.20 pelted stone and it hit on her head while she was going to cast her vote. As seen from the evidence of P.W. 1 4-Doctor, she sustained a head injury on scapular region. She did not reveal the same though she was beaten by some known person. Only omnibus allegation is levelled that all the accused pelted stones from the stone heap.
54. P.W. 6 stated that A. 14, A. 17 and A. 19 pelted stones against her and as a result P.W. 3 sustained injuries. Pelting of stones by A. 17 and A. 19 has not been stated by her before police. But, P.W. 3 did not state that these accused pelted stones against her. Therefore, in the absence of any corroboration, no reliance can be placed upon P. W.6 for convicting the accused for the offence under Section 324 I.P.C.
55. P.W. 7 stated that A. 6, A. 12, A. 17 and A. 19 pelted stones and as a result P.W. 1 sustained injuries. A. 10 axed P.W. 2, but P.W. 2 did not say. P.W. 8 stated that one of the stones hurled by A.7 hit against P.W. 1, but P.W. 1 did not say so.
56. The evidence of P.Ws. 2 to 4, 6 to 8 about pelting of stones by some of the accused or A. 10 and A. 11 armed with some weapons, is inconsistent from one witness to another. Admittedly, number of people were present and there was a throwing of stones by some of the accused. These witnesses stated for the first time in the Court about the specific overt-acts of some of the accused. Though their presence at the time of the incident is found to be probable, at the same time, there is no other reason for the accused to pelt the stones especially in view of the fact that main leader of one group was already killed and it is not the case of prosecution that these witnesses P.Ws. 2 to 4, 6 to 8 are the important leaders of the group of the deceased.
57. Further, P.W. 2 did not state before police that A.9 beat him with stick. P.W. 4 did not state before police that A. 1 to A. 19 pelted stones on him. P.W. 5 did not state before police that A. 10 beat P.W. 2 with axe. P.W.7 did not state about presence of A. 19. P.W. 8 did not state before police that the accused pelted stones and that the stone pelted by A. 7 hit P.W. 1. In view of these improvements, no implicit reliance can be placed upon their evidence so as to convict A. 4 to A. 9 for the offence under Section 324 I.P.C. for causing injuries to P.W. 1; A. 9 to A. 11 for the offence under Section 324 I.P.C. for causing injuries to P.W. 2; A. 17 to A. 19 for the offence under Section 324 I.P.C. for causing injuries to P.W. 3; A. 20 for the offence under Section 324 I.P.C. for causing injuries to P.W. 4.
58. One of the reasons assigned by the trial Court for discrediting the testimony of prosecution witnesses is that there was a free fight between the two groups as testified by P.Ws. 12 and 16. P.W. 12-Assistant Sub Inspector of Police stated that at a distance of 50 yards away from the polling booth, some people were holding stones, axes, sticks and both groups were pelting stones against each other. P.W. 16-Police Constable also stated that people of Telugu Desam Party came to the booth armed with knives, sticks and axes and that the Congress people were holding sticks; that both groups were exchanging pelting of stones by each other. Therefore, their evidence is quite contradictory to the evidence of P.Ws. 1 and 5, who did not state that there was a free fight between the two groups. P.W. 16 was declared hostile by the prosecution. Therefore, much credence cannot be given to the evidence of P.W. 16. Even assuming for a moment that the evidence of P.Ws. 12 and 16 is to be accepted with regard to free fight between the two groups, certainly some of the accused who are the sympathizers and supporters of Telugu Desam Party, would have received injuries. But, according to the case of prosecution, except P.Ws. 1 to 4 and the deceased, no other person sustained any injuries in the incident. When the deceased was done to death by A. 1 to A.3, the sympathizers of deceased group would have certainly attacked the Telugu Desam Party workers or some of the accused because, according to P.W. 16, they were armed with sticks, and according to P.W. 12, the prosecution witnesses pelted stones against the accused group. In the absence of any injuries sustained by the accused or the sympathizers of the accused, it cannot be said that there was a free fight between the two groups and it is only an attack by one group against the other group. On this ground, the conclusions arrived at by the trial Court are wholly untenable and erroneous. Without considering the surrounding circumstances, the trial court accepted the evidence of P.Ws. 12 and 16 as a gospel truth and arrived at the conclusion that there was a free fight between the two groups. But, that is not at all the case of prosecution and also the accused.
59. The evidence of P.Ws. 9 to 11 who came for conducting elections is not much relevant with regard to the attack on the deceased. But, their evidence is clear that a galata took place outside the school building and in that galata, the contesting candidate Satyanarayana Reddy was murdered. To that extent, their evidence can be taken into consideration.
60. P.Ws. 17 and 18 were examined with regard to arrest of some of the accused and seizure of M.Os. 1 to 5. But, they did not support the case of prosecution. But, the evidence of P.W. 23-Circle Inspector would go to show that M.Os. 1 to 5 were seized in pursuance of Ex. P20 and 21.
61. P.W. 10 is the Magistrate who conducted test identification parade whereunder P.W. 12 identified A. 12, A. 16, A. 19, A. 5, A. 6, A. 9, A. 8, A. 15, A. 18, A. 20 and A.M. Ex. P14 is the test identification proceedings. There cannot be any dispute that Ex. P14-identification proceedings cannot be used as substantive evidence. At best, it can be used to corroborate the evidence of P.W. 12. But, P.W. 12 did not state in his evidence that some of the accused armed with deadly weapons attacked the deceased or that some of the accused pelted stones against the prosecution witnesses. He simply stated that on seeing the mobile police party, the mob escaped and that both the group pelted stones against each other and that he identified 14 persons before the Magistrate on one occasion and 4 persons on the other occasion and that all the accused are the similar persons whom he identified in the presence of the Magistrate. But, he did not state that any one of the accused participated in commission of the offence or pelted stones against any one of the witnesses. Therefore, his evidence is not much helpful to the case of prosecution.
62. The defence wanted to take advantage of a stray admission made by P.W. 12 that soon after the incident police arrested the accused. Whereas the evidence of P.W. 23 would go to show that some of the accused were arrested on 8.3.1995 and some other accused were arrested on 29.3.1995. None of the witnesses stated about the presence of the accused after arrival of the police party or the investigating officer. On the other hand, the evidence of prosecution witnesses would clearly go to show that all the accused ran away from the scene of occurrence. Such is the case, question of arresting some of the accused immediately after the incident does not arise.
63. It is one of the contentions raised by the learned Counsel for the respondents that the statement of P.W. 10 would go to show that some hired killers killed the deceased. He stated that he came to know that some hired killers killed the deceased. The statement made by him is a hear-say one, and that his evidence that he came to know through somebody about the manner of attack on the deceased, is clearly inadmissible under law.
64. One of the reasons for doubting the prosecution case by the trial Court is that Ex. P1 was received by the local Magistrate at about 1.20 hours on 7.3.1995 and the inquest report accompanied the F.I.R. and that non-production of a general diary is a serious infirmity in the prosecution case. Admittedly, P. Ws.22 and 23 were present in the village itself till late night on that day. Therefore, there was no scope or possibility for them to send the F.I.R. to concerned Court. After recording Ex. P1, the case was registered at about 11.00 AM and thereafter even if there are laches i.e. some constables attached to police station in not sending report to Court, that by itself is not a ground to doubt the prosecution case. There is no material to indicate that an entry was made in the Station General Diary with regard to occurrence and that was suppressed by the prosecution.
65. Basing on the surmises and conjectures the trial Court acquitted A. 1 to A. 3. There were no contradictory versions put forth by the prosecution to show that the genesis of the occurrence or the manner of assault was suppressed and that the scene of occurrence was shifted. But, there is no basis to arrive at such a conclusion. The findings of the trial Court are perverse which are not based upon proper appreciation of the evidence. The trial Court has given much importance to the trivial omissions and taken note of undue aspects which do not shake the basic version of the prosecution case in regard to attack on the deceased by A. 1 to A. 3, and came to wrong conclusion that the prosecution failed to establish its case. The evidence of P.Ws. 1 and 5 can be taken as true and trustworthy because they have no grouse or enmity against any one of the accused particularly A. 1 to A. 3. When their presence at the scene of occurrence is established beyond reasonable doubt, there is a scope for them to witness the incident. It is not that much difficult for them to specify the overt-acts of each of A. 1 to A. 3 in causing injuries to the deceased. The main fabric of the prosecution from the time of registration of the case with regard to attack by A. 1 to A. 3 on the deceased is not shaken or disturbed till the eye-witnesses deposed in the trial Court. In view of the above, we have no hesitation to hold that the prosecution established its case against A. 1 to A.3 for the charge under Section 302 I.P.C. beyond reasonable doubt.
66. In the result, A. 1 to A. 3 are found guilty of the offence under Section 302 I.P.C., accordingly they are convicted of the said charge and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- each in default to suffer further simple imprisonment for a period of one month each. In all other respects, the judgment of the trial Court is confirmed.
67. The Criminal Appeal and the Criminal Revision Case are allowed setting aside the impugned judgment to the extent indicated above.