Andhra HC (Pre-Telangana)
Javvadhi Sesha Rao And Ors. Etc. vs State Of Andhra Pradesh on 17 August, 1994
Equivalent citations: 1994(2)ALT(CRI)624
JUDGMENT M.N. Rao, J.
1. These three criminal appeals arise out of the judgment of the learned Additional Sessions Judge, West Godavari at Eluru in S.C. No. 24 of 1992. Cri.A. No. 900 of 1993 was filed by A-1, A-4 to A-6 and A-9 to A-16. Cri.A. No. 953 of 1993 was filed by A-2 and A-3 and Cri.A. No. 1156 of 1993 was brought by A-7 and A-8 in the Sessions Case. Cri.M.P. No. 3437 of 1993 was filed by the State through the Public Prosecutor to expunge certain remarks made against the Investigation Officer, P.W. 34, (Inspector of Police, CB CID) by the learned Additional Sessions Judge in the course of his judgment in S.C. No. 24 of 1992. This judgment will dispose of all the three criminal appeals and the Cri.M.P.
2. On 24-6-1991 at about 8.00 a.m., in the sacred precincts of Madana Gopalaswamy temple of Narasapur town, one Adhikari Madhava Rao was murdered by a group of people. The prosecution case is that A-1 to A-16 caused the death. A-1 armed with an axe and the rest of the accused armed with knives entered the temple and A-1 hacked the deceased-Madhava Rao with the axe on the head and dealt a second blow on the face and the rest of the accused - A-2 to A-16 - indiscriminately stabbed him. At that time, the deceased was sitting in the temple while P.W. 7, the pujari's son, was performing 'abhisekham'.
3. In all, 21 persons were tried in connection with the aforesaid murder. Three charges were framed by the learned trial Judge : Charge No. 1 was under S. 148, IPC against A-1 to A-16 and all of them were convicted for that offence and each was sentenced to suffer R.I. for three years. The second charge was against A-1 to A-16 under S. 302 r/w S. 149, IPC and all them were convicted under this charge and each was sentenced to imprisonment for life. The third charge was under S. 120-B, IPC against all the 21 accused and the learned Judge acquitted all of them under this charge. The sentences of imprisonment were directed to run concurrently.
4. The deceased-Madhava Rao, all the accused and the material prosecution witnesses are residents of Narasapur town in West Godavari District. The case of the prosecution was that in the year 1985, the deceased started a union known as "Adhikari Madhava Rao Friends' Union", of which A-1 to A-16 and also some others including Pamarthi Venugopal and Pattapu Trimurthulu were members. Subsequently, differences arose between A-1 to A-3, Venugopal and Trimurthulu on one side and the deceased and his brothers on the other side, as a result of which, the accused started a rival union known as "Adarsha Mitra Mandali", of which one Viswanadham used to be the President and A-1 was the Secretary. A-4 and A-7 are the younger brothers of Trimurthulu. A-6 is the brother of Venugopal. A-8 is the brother-in-law of Trimurthulu and A-11 is the nephew of A-2. On 4-10-1989, Venugopal and Trimurthulu were murdered. In connection with that murder, Madhava Rao, the deceased, his brother Babu Rao and some others were prosecuted in S.C. No. 96 of 1990. Before the trial in relation to the murders of Venugopal and Trimurthulu commenced, when they were in jail as under-trial prisoners, Madhava Rao was released on bail. After he came out on bail, he used to visit Madana Gopalaswamy temple on every Monday regularly at about 8.00 a.m. On 24-6-1991, P.W. 1, Satyanarayana Murthy, a close follower of the deceased-Madhava Rao, went to his house at about 7.00 a.m. The deceased asked him to accompany him to the temple. At about that time, P.W. 2, Venna Prakash, another follower of the deceased, also came there. P.Ws. 1 and 2 were acting as body-guards of Madhava Rao and all the three went to the temple. P.Ws. 3 to 6 came to the temple at the time of the incident to have the darshan of the deity. The temple is a small one - the measurements of the temple, as per the observation report, Ex. P. 2, are 19 ft. x 19 ft. It consists of three parts - 'garbha gudi' 'mantralayam' and 'mukha mandapam' - all contiguous to each other. The entire place was commonly called as 'garbha gudi'. There are three door-ways to the temple on the East, North and South. The idols were facing towards the East and the deceased Madhava Rao was sitting opposite the idols. P.Ws. 3 to 6 who came to the temple for darshan, were standing at the Northern side inside the temple. P.Ws 1 and 2 were standing inside the temple at the Eastern door. On that day, P.W. 7, Venkata Lakshmi Narasimhacharyulu, the son of the pujari of the temple, was attending to the puja since his father was ill. Suddenly, A-1, A-2, A-3, A-5, A-6 and A-9 to A-16 rushed into the temple armed with deadly weapons; A-1 was armed with an axe and the rest of the accused with knives. Although in the charge-sheet filed, the case of the prosecution was that A-1 to A-16 entered into the temple and attacked the deceased Madhava Rao with deadly weapons, in the evidence adduced before the court, the material prosecution witnesses had excluded the complicity of A-4, A-7 and A-8. A-1 hacked on the head of the deceased-Madhava Rao with the axe and when he fell down, another blow was dealt on the face. The rest of the accused stabbed him indiscriminately. Seeing this, P.Ws. 1 and 2 ran out of the temple through the Eastern door, scaled over the temple wall on the Southern side and hid themselves in a jasmine bush. The accused came out of the temple shouting "the bastard is dead. We got rid of him today. Where are the other bastards who accompanied him. They too will receive the same fate". After the accused had left the temple, P.Ws. 1 and 2 came back to the sanctum sanctorum and found Madhava Rao dead with injuries. P.W. 2, Veena Prakash, went to the house of P.W. 22, the elder brother of the deceased, and informed him about the murder. P.W. 1 went to the police station and gave a statement Ex. P. 1, which was registered by P.W. 31, B. George, the Assistant Sub-Inspector, as crime No. 58/91; Ex. P. 53 is the F.I.R. P.W. 31 then informed the Inspector of Police, P.W. 33 on telephone about the incident, P.W. 7, the son of the pujari, on witnessing the ghastly incident, became nervous, ran out and informed the Executive Officer of the Temple, P.W. 16, Venkata Satyanarayana, whose office is situate within the temple premises. The Inspector of Police, P.W. 33, took up investigation. He went to the scene of offence and got Ex. P. 2, observation report, drafted by P.W. 23 and also prepared a rough sketch, Ex. P. 54. He held inquest over the dead body in the presence of P.W. 23 and other relations between 12 noon and 3.00 p.m., on that very day, P.Ws. 1 to 4 were examined at the inquest. Ex. P. 3 is the inquest report. After the inquest, the body was sent to P.W. 27, Dr. P. Martha, Woman Civil Assistance Surgeon, Government Hospital, Narasapur, for post-mortem examination through a constable, P.W. 29. P.W. 27, the doctor, who conducted autopsy, found as many as 25 antemortem external injuries and 9 internal injuries on the body of the deceased as detailed below :-
"1. Incised injury 1" x 1/4" x 1/2" over the front of the chest right side over 7 to 8 rib space, just lateral to midline spindle shaped clean cut edges obliquely placed.
2. Incised injury 1 1/2" x 1" over the chest on the left side in front, place 3" below the medial end of the left clavicle and 1" lateral to the midline, edges clean cut vertical.
3. Incised injury 1/4" x 1/2" x 1/8" over the left side of the chest, present just below the middle third of the left clavicle oblique spindle shaped clean cut edges.
4. Incised injury 1 1/2" x 3/4" x 1/8" over the chest right, spindle shaped clean cut edges oblique.
5. Incised injury 1 1/4" x 1/2" x 1/2" over the chest right, spindle shaped clean cut edges oblique.
6. Incised injury 1" x 1 1/4" x 1/2" over the posterior aspect of the chest left side, scapular region, 3 1/2" below the left clavicle, spindle shaped clean cut edges oblique.
7. Incised injury 1 3/4" x 1 1/2" x 1 1/4" over the front of the chest right side edges clean cut.
8. Incised injury 1" x 1/4" x 3" over the back of the chest right side scapular region, depth leading to the thoracic cavity, into the lung.
9. Incised injury 1/8" x 1/2" x 1/8" over the right side of the chest anterior aspects.
10. Incised injury 1 1/4" x 1/2" over the abdomen in the epigastrim, just lateral to the midline to the left side oblique. Clean cut edges.
11. Incised injury 5" x 1" x 1 1/2" over the face, obliquely placed cutting the bones of the nose medial side over the right eye and extends to the right ear.
12. Incised injury 1 1/4" x 1/4" x 1/8" over the left ear cutting lubute.
13. Incised injury 1 1/4" x 1/4" x 3/4" over the head frontal and parietal area left side, oblique skull underneath is fractured or cut to the same length, oblique spindle shaped.
14. Incised injury 3" x 1/2" x 1" over the head on the frontal area in the midline vertically placed 'Y' shaped measuring 1 3/4" x 1/2" x 1 1/2" x 1/2" of the limbs of 'Y' shape. Skull underneath is clearly cut in the same extent throughout the extent of the injury.
15. Incised injury 3" x 1/4" x 1/2" over the head on the occipital area in the midline, skull underneath is fractured in the same extent clear cut and oblique.
16. Abrasion 1 1/2" x 1/4" over the front of wrist right side transverse clean cut edges.
17. Abrasion 1 1/2" x 1/8" over the right forearm anterior aspect lower third transverse.
18. Incised injury 1 1/2" x 1/8" over the left wrist posterior aspect oblique.
19. Incised injury 1 3/4" x 1" x 1/2" over the right hand dorsal aspect fracture of metacarpal bone underneath present vertical spindle shape.
20. Incised injury 1/2" x 1/4" over the left hand web space of left thumb and index fingers.
21. Incised 3/4" x 1/4" x 1/8" over the left middle finger.
22. Abrasion 3/4" x 1/4" x 1/8" over the left hand palm.
23. Incised injury 1 1/2" x 3/4" 1/4" over the right thigh front trangular shape.
24. Lacerated injury 1" x 1/4" x 1/8" over the right thigh anterior aspect lower third.
25. Incised injury 2" x 1" x 1/2" over the left side of the neck just below the left ear, it is curved in the upper part and tapper and lower is board edges clean cut muscle deep. All injuries are ante mortem in nature.
INTERNAL INJURIES :
1. Stab injury over the chest in front over the second rib face right side leading to right lung haemotoma of the lung present.
2. Incised injury 1" x 1/2" x 3/4" over the left lung haemotoma of whole of the upper part of the chest on left side, in front, present.
3. Incised injury present over the 6th and 5th ribs space on the left side leading to the injury to left lung.
4. Stab injury over the sternum of 2" x 1/2" x 1 3/4" over the front of the chest, leads to left lung, into the thoracic cavity.
5. Incised injury 3/4" x 1/2" x 2" over the heart entering into the chambers obliquely placed. All organs congested. Cut section same, abdomen dark. Blood clots attached to the colon on the right side of the abdomen, hypochondrium.
6. Incised injury of 3/4" x 1/4" x 1/2" over the right lobe of the liver, anterior aspect verticle and another just 1/4" apart, 3/4" x 1/8" x 1/2" present.
7. Injuries over the right and left kidneys present. Incised injury over the right kidney and haemotoma present on the left kidney. Spleen congested. Stomach mucous membrane normal. Empty except 2 cc of brownish dark liquid. No characteristic smell. Intestines normal. Bladder empty; all organs of abdomen are congested. Cut section same. Head skull fractured frontal bone, exactly corresponding external injuries. Fracture occipital bone and fracture front parietal bones exactly similar impression corresponding to the external injuries over the head. Skull on open there is incised wound 3" x 1/2" over the brain, left side. Oblique over the front parietal region.
8. Incised injury 'Y' shape over the brain corresponding to the skull injury and external injury.
9. Incised injury 1 1/2" x 1/2" over the brain corresponding to the occipital area of skull injury. Brain congested."
Ex. P. 43 is the post-mortem certificate. According to the doctor, the injuries on the head and face could have been possible with a weapon like M.O. 3 (axe) and the other injuries could be possible with weapons like M.Os. 4 and 5 (knives). The death was the result of the multiple injuries to vital organs and the time of death was about 8 hours prior to the post-mortem examination, was the opinion expressed by the doctor.
5. The Inspector of Police, P.W. 33, arrested A-4 on 16-7-1991. A-11 and A-13 were arrested on 2-8-1991. A-10 was arrested on 10-8-1991. The case was transferred to C.B.C.I.D. on 16-8-1991 and the investigation was taken over by P.W 34, the Inspector of Police, CB CID. On 27-8-1991, A-16 was arrested by P.W. 34 and on 5-9-1991, A-6 was arrested. A-17, A-18 and A-21 were arrested on 7-9-1991.
6. In support of its case, the prosecution examined as many as 34 witnesses and marked 54 documents. No witness was examined on behalf of the accused but 58 documents - Exs. D-1 to D-58 - were brought on record. Three documents - Exs. X-1 to X-3 - were got marked through witnesses.
7. P.Ws. 1 to 6 are the direct witnesses to the occurrence. P.W. 7 is the son of the archaka who attended to the puja in the temple on the date of the incident. P.Ws. 8 to 15 were examined for the purpose of proving that after committing the offence, the accused were seen proceeding from the temple towards the college. P.W. 16 is the Executive Officer of the temple. P.W. 18, who was examined to speak about the group rivalries, turned hostile and was cross-examined by the Public Prosecutor. P.W. 26 is the Magistrate who recorded the S. 164, Cr.P.C. statements of P.Ws. 2 to 6.
8. The plea of the accused was one of total denial. As there was no evidence at all in respect of the charge relating to conspiracy under Section 120-B, IPC, all the 21 accused were acquitted for that offence. Although the direct witnesses have not testified about the participation of A-4, A-7 and A-8 in the commission of the crime, the learned trial Judge convicted them also taking the view that in their earlier statements recorded by the Magistrate under S. 164, Cr.P.C., they (the direct witnesses) stated about the participation of the above three accused also in the commission of the crime. The learned Judge accepted the testimony of P.Ws. 1 and 2, the direct witnesses, and also the testimony of P.W. 11, a fruit vendor who claimed to have seen A-1 to A-3, A-5, A-6, A-9 to A-16 proceeding towards the college road from the temple armed with deadly weapons. The evidence of P.Ws. 3 to 6 was disbelieved since they figure as co-respondents along with the deceased in security proceedings. The evidence of P.Ws 8 to 10 and 12 to 22 which related to the accused proceeding towards the college road and the conspiracy to murder the deceased also was disbelieved.
9. Shri Padmanabha Reddy, learned senior counsel appearing for the appellants in Cri. A. No. 900 of 1993, advanced leading arguments. He has contended that the testimony of P.Ws. 1 and 2 was not entitled to any credence since they were partisan witnesses and utterly unscrupulous. Having stated before the Magistrate, P.W. 26, in their S. 164, Cr.P.C., statements about the complicity of A-4, A-7 and A-8, in their evidence in the court, they deliberately took a different stand excluding the complicity of the aforesaid three accused because of the understanding with A-4. In S.C. No. 96 of 1990 relating to the murder of Trimurthulu and Venugopal - the two person who headed the rival faction after they fell out with Madhava Rao - the accused were Babu Rao, his brother Madhava Rao (the deceased in the present case) and some others. A-4 and A-7 in the present case are the younger brothers of Trimurthulu and A-8 is his brother-in-law. The material prosecution witnesses had come to an understanding with A-4, who is figuring as P.W. 3 in S.C. No. 96/90. A-4 as P.W. 3 in S.C. No. 96/90 should not implicate Babu Rao as a quid pro quo to the material prosecution witnesses in the present case excluding the complicity of A-4, A-7 and A-8 in the murder of Madhava Rao. According to the learned counsel, Ex. P. 1, statement given by P.W. 1, was fabricated; sometime after the offence was committed, there were consultations among the persons belonging to the prosecution party, in consequence of which, all the members of the rival faction were implicated and this is evident from the manner in which Ex. P. 1, on the second page, was written - small letters without any space between one line and the another. Ex. P. 1 was hit by S. 162, Cr.P.C., since the investigation was already commenced by the time Ex. P. 1 was registered pursuant to the information sent by the Executive Officer, P.W. 16, to the police through one of his attenders. The circumstantial evidence of P.W. 11 as to the accused leaving the temple after the commission of the offence is unworthy of credence since that witness was examined on the next day of the offence.
10. Before we discuss the evidence relating to the complicity of the main accused, against whom P.Ws. 1 to 6 have testified as direct eye-witnesses we are inclined to deal with the case of A-4, A-7 and A-8, which stands on a different footing. None of the direct witnesses - P.Ws. 1 to 6 - had stated anything about the presence of these three accused. It is true that in their earlier statements recorded under S. 164, Cr.P.C., P.Ws. 2 to 6 implicated A-4, A-7 and A-8 and those statements were brought on record as exhibits. The learned Sessions Judge, taking the view that the statements recorded under S. 164, Cr.P.C., could be relied upon for corroborating the statements of the witnesses made in the court, found these accused also guilty of the offence of murder since their evidence in the court excluding the complicity of the aforesaid three accused, allegedly, was the result of an understanding with the rival faction.
11. The learned trial Judge committed a serious legal infirmity in finding A-4, A-7 and A-8 guilty of the offence of murder in the absence of any witness testifying against them in the court. If any one principle in criminal jurisprudence is more firmly settled than others it is that a statement recorded under S. 164, Cr.P.C., cannot be used as substantive evidence. Sir John Beaumont, in Bhuboni Sahu v. The King (1) (sic), stated the legal position thus :
"A statement made under S. 164, Cr.P.C. can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in court by the person who made the statement."
In all subsequent rulings, this precedent is followed. The learned Sessions Judge has completely misunderstood the scope of the rule laid down by the Supreme Court in Dhanabal v. State of T.N., . It was observed by the Supreme Court (Para 13) :
"If the witness sticks to the statement given by him to the Magistrate under S. 164, Cr.P.C., no problem arises. If the witness resiles from the statement given by him under S. 164 in the committal court, the witness can be cross-examined on his earlier statement."
While dealing with the legal effects of a statement recorded under S. 164, Cr.P.C., the Supreme Court observed (Para 14) :
"S. 157 of the Evidence Act makes it clear that the statement recorded under S. 164 of the Cr.P.C. can be relied on for corroborating the statements made by the witnesses in the Committal Court. This court has expressed its view that though the statements made under S. 164 of the Cr.P.C. is not evidence, it is corroborative of what has been stated earlier in the Committal Court vide . The High Court was right in relying on the statement of the witnesses under S. 164 as corroborating their subsequent evidence before the Committal Court. Equally unsustainable is the plea of the learned counsel that a statement recorded under S. 288 of the Cr.P.C., of the one witness cannot corroborate the statement of another witness under S. 288. The statements are treated as substantive evidence in law and we do not see any flaw in treating the statement of one witness as corroborative of the other".
These observations were mistaken, evidently, by the learned trial Judge as laying down the proposition that a statement under S. 164, Cr.P.C., when resiled by its maker figuring as a witness in the Sessions Court, can constitute a valid foundation for recording a conviction of guilt. The question being a basic one, the learned Public Prosecutor has fairly conceded that the learned Sessions Judge's view is totally unsustainable in law.
12. The incident in question happened at about 8'O clock in the morning on 24-6-1991. PWs. 1 and 2 accompanied the deceased Madhava Rao to the temple and they were inside the temple at the Eastern gate when P.W. 7, the son of the pujari, was performing the abhisekham, Ex. P. 1, the statement, given by P.W. 1 was registered at 9.00 a.m., by P.W. 31, the Assistant Sub-Inspector of Police. In Ex. P. 1, the names of A-1 to A-16 were mentioned. How the incident happened also was described. It also referred to the presence of P.Ws. 3 to 6 in the temple and also the presence of P.W. 7, the pujari's son, who performed the abhisekham.
It was mentioned in Ex. P. 1 :
"While the purohit was performing abhisekham suddenly, A-1 to A-16, in a group, entered the sanctum sanctorum and surrounded the deceased, who was sitting opposite the idols. A-1 hacked the deceased with an axe on the head and face. A-2, A-3, A-4, A-6 and the remaining persons started hacking the deceased with knives."
On the second page of Ex. P. 1, towards the bottom, we find about ten lines closely written with small letters. This part of Ex. P. 1 relates to P.Ws. 1 and 2 scaling the Southern side wall of the temple and hiding themselves near a jasmine bush and returning to the sactum sactorum after half-an-hour to see what happened to the deceased. It also referred to the accused leaving the temple. We do not find any justifiable reason to accept the contention of the learned counsel for the appellants that this part of Ex. P. 1 is suggestive of its fabrication. P.W. 1, who gave the statement, Ex. P. 1, admittedly, was a close follower of the deceased Madhava Rao. He was so loyal to the deceased that he had the name of the deceased inscribed as a tattoo mark on his hand. As he was available for the prosecution and not having been suspected, in the remote, of showing any sympathy for the opposition side, there was no need to obtain his signature on a blank paper and fill up the contents and present the same as Ex. P. 1 P.W. 31, the Assistant Sub-Inspector of Police, who recorded the statement, Ex. P. 1, denied the suggestion that on a blank paper containing the signature of P.W. 1, he prepared Ex. P. 1. Evidently, P.W. 31 thought that the entire document could be confined to one sheet of paper and with that intention, wrote the latter part on page 2 of Ex. P. 1 in small letters.
13. The contention that Ex. P. 1 was hit by Section 162, Cr.P.C., in our view, is baseless. P.W. 31, the Assistant Sub-Inspector of Police, had denied in the cross-examination that he recorded the statements of P.W. 7, the pujari's son, and the Executive Officer, P.W. 16, separately at 8.30 a.m., on the date of the incident in the temple. The crime was committed at about 8'O clock in the morning. P.Ws. 1 and 2, who hid themselves, in a jasmine bush, came back to the sanctum sanctorum after about half-an-hour and found Madhava Rao dead with injuries. P.W. 2 rushed to the house of P.W. 22, Anantha Ramta Rao, the elder brother of the deceased-Madhava Rao while P.W. 1 went to the police station. The Executive Officer of the temple, P.W. 16, whose office is situate in the premises of the temple, on being informed by P.W. 7, the archaka's son, about the incident, rushed to the sanctum sanctorum accompanied by his attender one Venkata Rathnam. After seeing the body of the deceased-Madhava Rao lying in a pool of blood, he became frightened and went away to his office. He sent his attender to the police station at about 9.00 a.m. He also testified that he went to the post-office and sent telegrams to his superiors. Ex. X. 1 is the telegram sent by him to the Assistant Commissioner of Endowments at 10.20 a.m., on 24-6-1991. After sending the telegram, when he returned to the office, he saw police people in the temple. He denied the suggestion that his statement was recorded by the Assistant Sub-Inspector, P.W. 31, at about 8.20 a.m. The attender sent by him to complain to the police about the crime in question informed him that the police did not record his statement as, by then, another statement was already recorded. The entire argument as to Ex. P. 1 being hit by Section 162, Cr.P.C. is built upon the evidence of P.W. 7, the archaka's son, who stated in the cross-examination that at about 8.30 a.m., the Assistant Sub-Inspector, P.W. 31, and some constables came to the scene and recorded his statement and the statement of P.W. 16, the Executive Officer of the temple. There was no possibility for the investigation to have commenced by 8.30 a.m. itself, since there was no definite information available with the police relating to the commission of the crime in question as contemplated under Section 154 Cr.P.C. The time 8.30 a.m., stated by P.W. 7 when his statement was allegedly recorded by the police was only an approximate one; he was obviously not clear as to what was meant by recording of statement. We, therefore, hold that prior to Ex. P. 1, there was no definite information with the police about the crime in question and no investigation commenced prior to the registration of Ex. P. 1.
14. There was rivalries between two groups in Narasapur town - one headed by the deceased Madhava Rao and the other by A-1. P.Ws. 1 and 2, admittedly, were the followers of the deceased-Madhava Rao. The deceased-Madhava Rao was murdered by group of people in the sanctum sanctorum of Mandanagopala Swamy temple in Narasapur town. He met with his death at the hands of the accused party is the inference that flows inevitably from the evidence on record. The evidence of P.Ws. 1 and 2 as to how the offence had taken place is very consistent. According to them, it was A-1, who armed with an axe, dealt blows on the head and face of the deceased Madhava Rao. External injuries Nos. 11 and 15 obviously are the result of the hacking by A-1 with the axe, M.O. 3. The medical evidence, as testified by P.W. 27, the doctor who conducted the post-mortem examination, corroborates the oral evidence of P.Ws. 1 and 2 as to the injuries inflicted by A-1 on the deceased.
15. Merely because P.Ws. 1 and 2 were the followers of the deceased-Madhava Rao, their evidence, on that score, cannot be thrown out. They did not conceal the fact that they were the followers of the deceased. They were acting as his body-guards. As they accompanied Madhava Rao to the temple, they did not go armed with weapons, evidently, thinking that no harm would be fall them in that sacred place. The deceased-Madhava Rao also might not have anticipated that there would be an attack on him within the sacred precincts of the temple. It is true that the eye witnesses having stated before the Magistrate in their Section 164, Cr.P.C. statements about the participation of A-4, A-7 and A-8 in the crime in question, resiled from that stand while testifying in the court. On this ground, we cannot reject their entire testimony. The reason for P.Ws. 2 to 6 in their testimony in the Sessions Court not adhering to the earlier version given by them in the Section 164, Cr.P.C. statement as to the complicity of A-4, A-7 and A-8 is discernible from the suggestions made by the defence counsel in their cross examination : In S.C. No. 96/90 relating to the murder of Trimurthulu and Venugopal, who belonged to the rival faction, the deceased-Madhava Rao, his brother Babu Rao and others were figuring as the accused and the understanding between the two factions was that the present A-4, A-7 and A-8, close relations of Trimurthulu, one of the deceased in S.C. No. 96/90, should not be implicated as quid pro quo for A-4, who is figuring as P.W. 3 in S.C. No. 96/90, to exclude the complicity of Babu Rao in the murder of Trimurthulu and Venugopal.
16. As there is nothing in the evidence of the prosecution witnesses, as testified in the court, implicating A-4, A-7 and A-8, they are entitled for acquittal. But that cannot be a ground to reject the entire testimony of the eye-witnesses as to the manner in which the dastardly act was committed. P.Ws. 3 to 6 also are the eye-witnesses and their evidence was rejected by the learned Sessions Judge on the ground that they did not inform others of their witnessing the murder. The names of P.Ws. 3 to 6 are mentioned in Ex. P. 1. Both the material witnesses of the prosecution and the accused belong to two powerful factions each indulging in criminal activities and fighting against each other for carving out spheres of influence in the prosperous town of Narasapur. The presence of P.Ws. 3 to 6 in the temple when the offence took place is evident from the testimony of P.W. 7, the pujari's son, who said that before performing the abhisekham, four other devotees entered into the temple and five or ten minutes thereafter, about 15 persons armed with weapons - one of them with an axe and the rest with knives - entered into the temple and surrounded the deceased. The four devotees referred to by P.W. 7, obviously, are P.Ws. 3 to 6. P.Ws. 3 to 6, although were the supporters of the deceased-Madhava Rao, did not want to entangle themselves by reporting to the police. Within about an hour after the incident had taken place, police came to the scene and so there is no question of these witnesses informing the police or others about the crime in question because crowds had already gathered at the scene. P.Ws. 3 and 4 were also examined at the inquest held on the very same day between 12 noon and 3.00 p.m. The learned Sessions Judge was not right in rejecting the evidence of P.Ws. 3 to 6 on the ground that they figured as correspondents along with the deceased-Madhava Rao in the security proceedings. In faction cases, the followers of a leader usually figure as co-respondents in security cases or when they participate in crimes along with the faction leader, they figure as co-accused. P.Ws. 1 and 2 also were figuring as accused in the criminal cases along with the deceased-Madhava Rao and if the test adopted by the learned Sessions Judge is to be the criterion, then their evidence also will have to be eschewed from consideration. The reason given by the learned Sessions Judge for brushing aside the evidence of P.Ws. 3 to 6 is clearly erroneous.
17. The description of the sanctum sanctorum of the temple as found in Ex. P. 3, observation report, is in the following terms :
"The said sanctum sanctorum is in a square type measuring 19 feet 5 inches. There are entrances to the sanctum sanctorum on the north, east and south. The idol of Madana Gopalaswamy varu was established in the sanctum sanctorum on the western side. To the slab in the middle of the sanctum sanctorum, one big bell, two fans, two tube lights, four electrical bulbs are fitted. A wooden cradle, fitted to the upper roof was hanging on the southern side of the sanctum sanctorum. In the inner side of the walls of the temple, there are holes for worship of God by lighting lamps. The dead body of Adikari Madhava Rao was lying flat facing upwards in a pool of blood touching the wall on the southern side, head towards east and legs towards west in the sanctum sanctorum."
The prosecution case, as mentioned in the charge-sheet, is that the sixteen accused, in a group, entered into the sanctum sanctorum and attacked the deceased, who was sitting in front of the idols when the abhisekham was being performed. Already by then, P.Ws. 3 to 6 were present inside the temple besides P.Ws. 1 and 2, who were waiting at the eastern gate inside the sanctum sanctorum. The son of the pujari, P.W. 7, was performing the abhisekham. The sanctum sanctorum consists of three parts and in one part, the idols were installed. Excluding the space occupied by the idols, which we roughly estimate as four feet, in the rest of the space i.e., 15 ft. 5", it is not possible for the sixteen accused to rush in armed with deadly weapons for the purpose of attacking the deceased-Madhava Rao. The space was not at all sufficient for them to wield the weapons and successfully launch the attack on the deceased. We find in the cross-examination of one witness P.W. 5 - that a suggestion was made that there was no room for ten persons to enter into the sanctum sanctorum but the same was denied by him. On this aspect, there was not much of cross-examination of other witnesses nor any arguments were advanced in the trial court. The factual position cannot be denied : In a space measuring 15 ft. 5", it is impossible for so many accused to rush in and attack the deceased : the number must have been far less than what was alleged in the trial court by the prosecution witnesses.
18. It is settled law that in judging the extent of criminality of the accused involved in faction cases, great care should be taken to see that the innocent are not punished. The natural tendency of the prosecution witnesses is to testify not only against the persons really guilty but also to implicate innocent persons belonging to the rival factions in order to wreak vengeance. As observed by the Supreme Court in Bajwa v. State of U.P., 1975 Mad LJ (Cri) 54 at p. 64 : (1973 Cri LJ 769 at p 778) :
"The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which, in some measure, implicates such accused and satisfies the conscience of the court."
To the same effect is the statement of law laid down in Sherey v. State of U.P., .
"....... when there is a general allegation against a large number of persons, the court naturally hesitates to convict all of them on such vague evidence. Therefore, we have to find some reasonable circumstances which lends assurance."
Considering the medical evidence that as many as 25 external injuries were inflicted on the deceased, in all probability, about 10 persons among the present appellants must have participated in the attack. In Ex. P. 1, after mentioning the names of A-1 to A-16, it was stated that A-1 hacked the deceased with an axe on the head and face. A-2 to A-4 and A-6 started hacking the deceased with knives and the remaining persons also started hacking the deceased with knives. Specific overt acts were attributed, besides A-1, to four more accused - A-2, A-3, A-4 and A-6. As none of the prosecution witnesses testified against A-4, he cannot be convicted. We, therefore, think it reasonable to hold A-1, A-2, A-3 and A-6 alone guilty but not the rest of the accused as it is not possible, with any degree of certainty, to conclude as to who are the remaining six persons among the accused the participate in the attack. We have no doubt in our minds that the rest of the accused to whom we are extending the benefit of doubt were clearly amongst the party of the assailants but as observed by the Supreme Court in Bajwa, (1973 Cri LJ 769) (supra), "their identity cannot be safely fixed without the risk of implicating the possible innocent". We, therefore, confirm the convictions recorded by the trial court in respect of A-1, A-2, A-3 and A-6 and the sentences awarded against them.
19. Although we are affirming the convictions of only four persons in respect of the two charges - the first under Section 148 IPC and the second under Section 302 r/w Section 149, IPC - no possible legal objection can be taken on the ground that the convicted persons are less than five in number. As A-1, A-2, A-3 and A-6 along with some other accused, in all about ten, participated in the attack with deadly weapons on the deceased Madhava Rao, the invocation of Sections 148 and 149 IPC, in our view, is clearly warranted. In Bajwa, (1973 Cri LJ 769) (supra), out of the 10 persons convicted by the High Court under Sections 148 and 302 r/w 149 IPC, the Supreme Court acquitted seven accused and maintained the convictions and sentences of the rest of the three accused under Sections 148 and 302 r/w 149 IPC. As this legal position is not in doubt, no arguments are advanced before us by either side. Even assuming for the sake of argument that Sections 148 and 149 IPC could not be invoked, the fact that the deceased was attacked with deadly weapons by A-1, A-2, A-3 and A-6 resulting in as many as 25 external injuries culminating in his instantaneous death, they would be liable to be convicted under Section 302 r/w Section 34 IPC; from the nature of the attack, the inference necessarily follows that it was the result of a concerned action, the common intention being to murder Madhava Rao.
20. Crl.M.P. No. 3437 of 1993 was filed by the State represented by the Public Prosecutor to expunge certain remarks made by the Additional Sessions Judge in the judgment under appeal against the Inspector of Police, CB CID., P.W. 34, who completed the investigation and laid the charge-sheet. The learned Judge, in the course of his judgment, has used harsh expressions while discussing the evidence of P.W. 34, the Inspector, CB CID. The learned Judge observed that the suggestion that A-17 to A-21 were falsely implicated by P.W. 34 at the instance of some ministers appears to be true and that he cooked up his diaries and that it is not desirable to entrust any important cases for investigation to P.W. 34 and he is guilty of the offences punishable under Sections 193 to 196 IPC. He also observed that the State as well as P.W. 34 are liable to pay heavy damages to A-17 to A-21. These observations, in our considered opinion, are unwarranted. On the basis of the evidence collected by him, he laid the charge-sheet. Because of the personalities involved and the notoriety of the accused as well as the deceased, the investigation, perhaps, could not be completed swiftly and the Investigation Officer could not succeed in bringing to light all the evidence that ought to have been brought to light. The observations of the learned Judge against the Investigation Officer, P.W. 34, appear to have been based upon the testimony of P.W. 18, one of the witnesses who turned hostile and also the evidence of P.W. 17, a person allegedly aspiring to fill the place of the deceased Madhava Rao, the leader of the faction. We, therefore, direct ex-punction of all the comments and remarks of the learned trial Judge stigmatising the conduct of P.W. 34 as the Investigation Officer.
21. In the result, the convictions recorded against A-1 (Javvadhi Sesha Rao), A-2 (Bonthu Chandrasekhar), A-3 (Bharathia Venkateswara Rao) and A-6 (P. Adinarayana) and the sentences imposed against them are affirmed. The rest of the accused are acquitted of all the charges. The sentences of imprisonment imposed against A-1, A-2, A-3 and A-6 shall run concurrently.
22. Crl.A. No. 900 of 1993 is allowed in part but dismissed as against A-1 and A-6. Crl.A. No. 953 of 1993 filed by A-2 and A-3 is dismissed. Crl.A. No. 1156 of 1993 filed by A-7 and A-8 is allowed. A-4, A-5, A-7 to A-16 shall be set at liberty forthwith if not required in connection with any other case.
23. Order accordingly.