Andhra Pradesh High Court - Amravati
Atlas Radhaiah, Spsr Nellore Dist. 4 ... vs P.P., Hyd on 4 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL No.319 of 2016
JUDGMENT:- (Per Hon'ble Sri Justice C.Praveen Kumar) Heard through Video Conference (Blue Jeans App).
2. A-1 to A-3, A-5 and A-8, who are the appellants herein, preferred this Criminal Appeal under Section 374(2) Cr.P.C. Originally, A-1 to A-8 were tried in Sessions Case No.156 of 2014 on the file of the learned VII Additional District and Sessions Judge, Gudur, SPSR Nellore District for various offences.
3. The first charge was under Section 143 I.P.C. against A-1 to A-8. A-1, A-2, A-3, A-5 and A-8 were found guilty for the offence punishable under Section 143 I.P.C. and they were convicted under Section 235(2) Cr.P.C. and sentenced to undergo rigorous imprisonment for six (6) months each. However, A-4, A-6 and A-7 were found not guilty for the said offence and they were acquitted under Section 235 (1) Cr.P.C.
4. The second charge was under Section 302 I.P.C. against A-1 and he was convicted under Section 235(2) Cr.P.C. and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,000/-, in default of payment of fine, to 2 undergo simple imprisonment for a period of eight (8) months.
5. The third charge was under Section 302 read with 149 I.P.C. against A-2 to A-8. A-2, A-3, A-5 and A-8 were convicted under Section 235(2) Cr.P.C. for the said offence and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of four (4) months each. However, A-4, A-6 and A-7 were found not guilty for the said offence and were acquitted under Section 235(1) Cr.P.C.
6. The fourth charge was under Section 302 read with 114 I.P.C. against A-2 to A-8. A-2, A-3, A-5 and A-8 were convicted under Section 235(2) Cr.P.C. for the offence under Section 302 read with 114 I.P.C. and they are sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of four (4) months each. However, A-4, A-6 and A-7 were found not guilty for the offence under Section 302 read with 114 I.P.C. and they are acquitted for the said charge under Section 235(1) Cr.P.C. All the sentences were directed to run concurrently.
7. The substance of the charge against the accused is that on 10.11.2012, in the paddy fields of Punabaka near 3 Tenkayathopu Village of Pellakur Mandal, which is on the eastern side of Naidupet - Srikalahasthi National Highway, A-1 to A-8 formed themselves into an unlawful assembly with a common intention and caused the death of Nadavati Subrahmanyam (hereinafter, referred to as "the deceased"). It is said that while A-1 caused the death of the deceased, A- 2 to A-8 abetted A-1 in commission of the offence.
8. The facts, as culled out from the prosecution witnesses, are as under:
P.W.1, who is a resident of Nellore, knows all the accused, who are residents of Tenkayathopu Village. P.W.2 is the son of the deceased and is also a resident of Nellore.
According to him, there were civil disputes between his father and the accused regarding lands situated in Tenkayathopu Village. There were cases in Courts and also in police stations. According to him, land to an extent of Ac.1-04 cents situated at Tenkayathopu Village is the subject matter of dispute between his father and the accused. It is said that in a civil case, judgment was pronounced in favour of the deceased. Pursuant thereto, the land was given on lease by the deceased to one Gangaiah (P.W.3), who is said to have taken that land on lease for an amount of Rs.25,000/- per annum. It is said that P.W.3 ploughed the said land and raised janumu and jute crops and accordingly, wanted to plough the said land to raise paddy. The accused also 4 ploughed that land and the same was informed by P.W.3 to the deceased. P.W.3 is said to have arranged seedlings (naaru) for the purpose of sowing them. The deceased informed P.W.3 that he would come and talk with the accused and asked him to get ready for plantation of paddy.
9. On 10.11.2012, P.W.3 got ready with the plantation and informed the same to the deceased. On that day, P.W.1 and the deceased started from Nellore in his car and reached the said land situated in Tenkayathopu Village at about 7:30 A.M. By that time, P.W.3 was not present. Then, P.W.1 and the deceased went towards Kalahasthi, which is at a distance of 5 kms from the village, to have breakfast. After having breakfast, both of them returned to the land at about 9:00 A.M. By that time, P.W.3 was standing on the road. Thereafter, P.W.1, deceased and P.W.3 proceeded towards the said land. At that time, they noticed A-1 to A-8 and their workers in the said land. P.W.3 informed the deceased that A-3 is obstructing and preventing him from entering the said land. At that point of time, A-3 is said to have caught hold of the collar of P.W.3 and abused him in filthy language. He also claims to have informed P.W.3 that he has nothing to do with that land as dispute is between himself and the deceased. At that point of time, the deceased asked A-3 to remove his hands from P.W.3 and dispute may be resolved between himself and A-3. The other accused who were 5 present there are alleged to have abused the deceased stating that the deceased is not a native of Tenkayathopu Village and he has nothing to do with that place. The deceased informed that he does not want to talk with any of them; that he has a Court order and that if he approaches the police, they will give him protection. Saying so, he turned towards the road. Meanwhile, A-3 is said to have abused the deceased. P.W.1 asked the deceased as to why A-3 is talking in such a manner though he got appointment to A-3 in a Court as a Clerk.
10. The evidence of P.W.1 further shows that when the deceased moved towards the road, A-2 called him and asked him as to where he is going. The deceased replied stating that there is no need to talk with her and that he is going to the police station and accordingly moved further. Meanwhile, A-2 called A-1 and exhorted him to kill the deceased there itself and prevent him from going to the police station. This was at about 9:20 A.M. A-1 called A-3, A-5 and A-8 and moved towards the deceased. It is said that first, A-1 moved, while A-3 called Sekhar (A-5) and later, along with A-8, moved towards the deceased. By that time, the deceased was walking on the ridge. A-1 followed the deceased to some extent. Then, he jumped into the field from the ridge and ran towards the deceased. A-1 took out a knife from his waist, which was kept inside the pant, and tried to 6 hack the deceased, who warded off the same by raising his hands. The first blow fell on the right hand, causing an injury to his hand. On receiving the said blow, the deceased fell down from the ridge. Thereafter, A-1 hacked the deceased on the back side of his head between neck and head, thrice. It is said that other accused instigated A-1 to kill the deceased and not to spare him. When P.W.1 tried to rescue the deceased, A-1 and A-3 threatened him with dire consequences if he interferes. Due to fear, P.W.1 did not proceed further. Then, P.W.3 and other labourers, who are working in the field, gathered at the scene and on seeing them, the accused ran away. It is said that P.W.1 picked up the deceased and removed the mud from his face. He tide a towel on the head and with the help of Gangaiah, took the deceased to the road side but, while they were taking him towards road, the deceased stopped breathing. The body was kept on the ridge and information about the incident was given to P.W.2, who is the son of the deceased, through phone, who, in turn, informed P.W.1 to take the deceased to hospital. Later, P.W.1 informed P.W.2 that the deceased lost his breath, to which P.W.2 asked him to give a report in the Police Station.
11. At about 11:00 A.M., P.W.15 - Sub Inspector of Police received Ex.P-1 report from P.W.1 basing on which, he registered a case in Crime No.73 of 2012 for the offence 7 punishable under Section 302 read with 34 I.P.C. Ex.P-1 is the report and Ex.P-9 is the F.I.R. As per the instructions of the Inspector of Police, Naidupet, P.W.15 proceeded to the scene of offence along with the copy of F.I.R. and handed over the case file to the Inspector of Police, Naidupet for further investigation.
12. P.W.16 - the then Circle Inspector of Police, Naidupet took up further investigation. He instructed P.W.15 to proceed to the scene of offence along with a copy of F.I.R. Later, he visited the scene of offence at 11:30 A.M. and found the dead body of the deceased on the ridge of agricultural lands. In the presence of P.W.12 and others, he inspected the scene of offence situated in the paddy fields of Mayuri factory agricultural land and took photographs of the scene of offence. He also got prepared a rough sketch of the scene of offence, which is marked as Ex.P-10, while the observation report of the scene is placed on record as Ex.P-3. He seized blood stained earth and controlled earth, which are marked as M.Os.2 and 3. The photographs along with C.D. were marked as Ex.P-11. In the presence of P.W.12 and others, P.W.16 conducted inquest over the dead body of the deceased. Ex.P-4 is the Inquest Report. During inquest, he examined P.Ws.1 to 4 and one Nadavati Sarvanandam and recorded their statements. Thereafter, he sent the body to 8 Government Hospital, Naidupet for post mortem examination.
13. P.W.13 - Civil Assistant Surgeon at Government Hospital, Naidupet, conducted autopsy over the dead body of the deceased and issued Ex.P-5 - Post Mortem Certificate. According to him, the cause of death was due to injuries on the body of the deceased.
14. On receiving credible information about the accused on 20.11.2012, P.W.16 secured the presence of mediators P.W.14 and another and in their presence, arrested eight accused near Pandluru junction, when they tried to run away after seeing the Police. On enquiry, they revealed their names. Pursuant to a confession made, M.O.1 is said to have been discovered near the bushes. Ex.P8 is the panchanama for recovery of M.O.1.
15. After collecting all the necessary documents, P.W.16 filed charge-sheet, which was taken on file as P.R.C. No.14 of 2013 on the file of the Judicial Magistrate of I Class, Venkatagiri. On appearance of the accused, copies of all the documents as required under Section 207 Cr.P.C. were furnished and later on it was committed to the Court of sessions under Section 209 Cr.P.C. On appearance of the accused, charges under Sections 143, 302, 302 read with 149, 302 read with 114 I.P.C. came to be framed, read over 9 and explained to the accused, to which they pleaded not guilty and claimed to be tried.
16. In support of its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P1 to P13, besides marking M.Os.1 to 8. After completing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied and got marked Exs.D1 to D9 in support of their plea.
17. After considering the evidence of eyewitnesses viz., P.Ws.1, 3, 5 and 7, the learned Sessions Judge, while acquitting A4, A6 and A7, convicted A1 to A3, A5 and A8 for the charges leveled against them. Challenging the same, the present appeal came to be filed.
18. Sri H.Prahalada Reddy, learned counsel for the appellants, would contend that because of civil disputes existing in the family, all the accused are implicated in the case. He would further submit that, having extended the benefit to A4, A6 and A7, the same benefit should have been extended to A2, A3, A5 and A8. He would further submit that the name of A8 does not figure in the First Information Report given by P.W.1. In so far as the evidence of P.Ws.5 and 10 is concerned, he would submit that their names are not mentioned at the time of inquest and as such, their 10 evidence cannot be given much importance. He would further submit that it is difficult to believe that all the accused shared common intention along with A1 to kill the deceased, since it is not the case of the prosecution that other accused were having knowledge about A1 carrying weapon. Having regard to the manner in which the offence was committed and in view of the fact that A2, A3, A5 and A6 were doing agricultural operations in the lands, they cannot be convicted invoking either Section 149 I.P.C. or Section 114 I.P.C.
19. The same is opposed by the learned Public Prosecutor contending that the evidence of P.Ws.1, 3, 5 and 7, who were examined as eyewitnesses to the incident, amply establish the involvement of the accused in the commission of the offence. He would submit that the case of the prosecution has been established beyond reasonable doubt against A1, as the evidence is not only consistent against him, but the same gets corroboration from the medical evidence. In so far others, he pleads that all of them were present at the scene and aided A1 in commission of the offence.
20. The point that arises for consideration is, whether the trial court was right in convicting A1, A2, A3, A5 and A8?
21. Before going into the evidence with regard to the incident proper, it would be appropriate to refer to the 11 circumstances which led to the incident. P.Ws.3, 4 and his brother Pullaiagh got Ac.1.04 cents of the land by way of inheritance. Both of them sold the said land to one Vanamma, who is the daughter-in-law of the brother of P.W.4. Vanamma, in turn, sold the said land to A1 under agreement of sale. Pursuant there to, A1 came into possession and enjoyment of the said land. Subsequently, A1 entered into an agreement with the deceased, to sell the land to Mayuri Sugars. It is said that though A1 has to execute sale deed in favour of Mayuri Sugars, but he failed to attend for registration, as the sale consideration was less. As the documents are still in favour of P.W.4 and his family, with the advice of A4, P.W.4 and his brother sold the land to the deceased under a registered sale deed. Since then, disputes arose between A1 and the deceased. Cases came to be filed against each other. The evidence on record shows existence of not only civil cases, but also criminal cases between the parties in respect of the above said land. On a report given by A4, a case in crime No.89 of 2010 of Pellakur Police Station came to be registered for offences punishable under Sections 447, 354, 323 read with Section 34 I.P.C. against the deceased and P.W.4. Ex.D3 is the certified copy of the F.I.R. and Ex.D4 is the charge-sheet filed in the said case. P.W.2 and his three elder sisters filed O.S.No.74 of 2014 against the deceased, his junior paternal uncle and 14 12 others. Ex.D5 is the plaint copy in the suit. The deceased filed suit O.S.No.287 of 2011 before the Senior Civil Judge Court, Gudur, against A2, A4, A7, A1, A6 and others. Ex.D6 is the plaint copy. A4 also filed O.S.No.5 of 2006 against the deceased, P.W.4 and his brother and others. Ex.D7 is the copy of plaint.
22. In so far as this land in dispute, it has come on record that the deceased succeeded in the suit against A1. Thereafter, he is said to have asked P.W.3 to cultivate the land on lease. P.W.3 claims to have taken the land on lease for Rs.25,000/- per annum, but no lease agreement was entered into between the parties. P.W.3 is said to have raised janumu crop in that land. There was a panchayat at Sri Kalahasthi pertaining to the leased land between the deceased and the accused No.1. In the panchayat both the parties decided not to enter into the land for five months. It is said that a week prior to the date of incident, the accused violated the resolution of the panchayat by ploughing the crop raised by P.W.3. P.W.3, in turn, informed the deceased on phone about the ploughing. Pursuant to the conversation, the deceased is alleged to have stated that he would come and talk with the accused and asked P.W.3 to get ready for sowing paddy saplings. P.W.3 is said to have ploughed the land for raising paddy. The deceased and 13 P.W.3 decided that on 10.11.2012 they will plant paddy in the land.
23. Keeping in view the disputes that are existing between the parties and also the rival claims made by both the parties with regard to the land in dispute, we shall now proceed to appreciate the evidence available on record with regard to the incident in question. It is to be noted here that out of eight accused, A4, A6 and A7 were acquitted of all charges. The appellants before this Court are A1 to A3, A5 and A8. It is also to be seen here that, it was the deceased, who along with P.Ws.3, 1 and others came to the land for the purpose of planting paddy. It is also the admitted case of the prosecution that, on the fateful day, the deceased, along with P.W.3, came to the said land to find out from the accused, more particularly, A3 as to why they are obstructing the cultivation of land by P.W.3. It is also to be kept in mind that, A1 concealed the weapon under his shirt (not visible to others), and no other member present there was armed with any weapon. In fact, it is not the case of the prosecution that the accused were aware about P.Ws.1, 3 and the deceased along with others were coming to the said place to question the accused.
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24. Keeping these circumstances in the background, coupled with the disputes existing between the parties, we now proceed to analyse the evidence.
25. In the First Information Report given by P.W.1, which is placed on record as Ex.P1, it was stated that, on the fateful day i.e., on the date of incident, P.W.1, along with the deceased, proceeded from Nellore in the vehicle of P.W.1 to the fields situated near Tenkayathopu Village of Pellakuru Mandal and reached the place at 7.30 AM. By that time, P.W.3 was waiting on the road near the fields. It is said that A1 to A7, along with some others, were also present in the fields. At that time, P.W.3 informed the deceased about the obstruction caused by the accused No.3 in preventing P.W.3 from entering the land. Then, the deceased questioned A3 about his behaviour towards P.W.3, that too by violating the Court orders, which are in his favour. At that time, A2 intervened and stated that the deceased has nothing to do in their village, though court orders are in his favour Then, A5 and others got enraged and came upon the prosecution party by abusing them in filthy language. At that time, the deceased informed that he will settle the matter in the Police Station and if there is anything, it will be talked there. So saying, the deceased started moving towards the road. At that time, A2 alerted A1 to kill the deceased and prevent him from going to the Police Station. Then, A1 asked A3 to follow 15 him and see how the deceased goes to the Police Station. So saying, A1 ran across the land, removed the bill hook, which was concealed near his naval and hacked the deceased initially on his right hand and subsequently, after he fell down, on the back side head. A3 is said to have raised cries as 'kill him'. The remaining persons also cried as "not to leave that bastard". When P.W.1 tried to go near the deceased, all the accused threatened him with dire consequences, if he comes near. On seeing the arrival of P.W.3 and others, the accused left the scene. This, in substance, is the content of the First Information Report given by P.W.1.
26. From the First Information Report, which is earliest document lodged by P.W.1, it is clear that, there is no reference to A8 in the First Information Report. Apart from that, it has been stated that, all the accused persons present there have cried and raised voice not to leave the said person, meaning thereby that they have exhorted A1 to kill the deceased, but, strangely, A4, A6 and A7, whose names are also mentioned in the F.I.R. were acquitted.
27. Question now is whether any such benefit can be given to any of the other accused. At this stage, it is to be noted here that A4, A6 and A7 were acquitted on the ground that there is no evidence on record to show that they came along 16 with A1 and that the other accused came with a common object and intention to kill the deceased. The finding that, A4, A6 and A7 never came along with A1, is not correct, for the reason that, from the averments made in the First Information Report, it is very much evident that all of them were in the lands when P.Ws.1, 3 and the deceased went towards the said land. Be that as it may, in so far as specific roles attributed to the accused are concerned, apart from A1 attacking the deceased, (a) A2 is said to have alerted A1 to kill the deceased and stop him from going to the Police Station; (b) A2 is said to have intervened stating that the deceased has nothing to do in the village, though he got a Court order and A5 along with others came upon them; and
(c) after A2 alerted A1 to kill the deceased, A1 asked A3 to follow him and see how the deceased goes to the Police Station. This, in substance, are the specific roles attributed to A2, A3 and A5 in the First Information.
28. Coming to the inquest proceedings, which are placed on record as Ex.P4, the same were conducted on 10.11.2012 at 1.30 noon. P.Ws.1 to 4 and another were examined as witnesses at the time of inquest. It is no doubt true that, inquest is mainly conducted to note the cause of death, but in a case where disputes are existing between the parties, not only on civil side, but also on criminal side, nothing prevents the Court from looking into the said report to test the veracity 17 of the witnesses and also to find out truth as to how the incident took place. The Hon'ble Supreme Court in Kuldip Singh vs. State of Punjab1 held as under :
"...... No doubt, the contents of the inquest report cannot be treated as evidence but they can be looked into to test the veracity of incident".
29. A perusal of column-XV of the inquest report would show that, on the fateful day at about 9.00 or 9.30 AM, the deceased, along with P.Ws.1 and 3, went to the fields and by that time, accused were present in the fields with an intention to kill the deceased. They picked up a quarrel and while the deceased was going to the Police Station to settle the matter in the Police Station so as to avoid dispute at the field, A2, A4 and A7 are said to have cried and alerted A1 to kill the deceased and prevent him from going to the Police Station. At that time, A1 is said to have asked A3, A5 and A6 to follow him and see how the deceased bastard would go to the Police Station. So saying, he ran across the land, removed the bill hook, which was concealed under his shirt, and hacked the deceased saying, 'chaavara Naa Kodaka'. Thereafter, A3, A5 and A6 cried not to leave the deceased and asked A1 to kill the deceased. When the deceased raised his hand to ward off the blow, he sustained injury on his right hand and fell down in the mire land from the ridge in the upside down direction. Then, A3, A5 and A6 cried stating 1 1992 CriLJ 3592 18 that the deceased should not be left and the pain on his hand will go away within a day. Then, A1 hacked the deceased three times on the backside of the neck.
30. From the contents of the inquest report, which came to be prepared at 1.30 PM, in which P.Ws.1 and 3 were examined as eyewitnesses to the incident, the version of A1 attacking the deceased is consistent, but, with regard to the participation of A2, A3 and A5, the same does not figure in the same manner as in F.I.R. As stated by us earlier, in the First Information Report, A2 initially intervened stating that, the deceased, though got orders from the Court, has nothing to do in the Village. Then, A5 and other accused came upon the prosecution party. Later, A2 alone is said to have exhorted A1 to kill the deceased and prevent him from going to the Police Station. But, this version was given a go-by in the inquest report and the theory of exhorting A1 to kill and prevent him from going to the Police Station was attributed to A2, A4 and A7 and the act of A5 and others coming upon the prosecution party was never referred to in the inquest report. In so far as A1 asking A3 to come and see that the deceased does not go to the Police Station, the inquest report refers to A1 asking A3, A5 and A6 to see how the deceased would go to the Police Station. Therefore, from the above it is very clear that, the version of P.W.1 in the First Information Report got changed and a different version is being introduced in the 19 inquest adding some more names to the persons who instigated A1. The role of instigation now in the inquest is sought to be attributed to A3 and A5 along with A2, while A3, A5 and A6 were said to have followed A1 on the demand of A1.
31. Coming to the oral evidence, P.Ws.1, 3, 5, 7 and 10 were examined as eyewitnesses to the incident. It may not be necessary for us to go into the entire evidence, suffice would it be if we confine their evidence to the incident proper and the cross-examination on that aspect.
32. The evidence of P.W.1 is to the effect that, on 10.11.2012, himself and deceased started from Nellore in his car at 7.30 AM and reached the land at 9.00 AM after having breakfast on Kalahasthi Road. By that time, P.W.3 was standing on the road. Later, all the three of them started going towards the land. At that time, P.W.3 informed the deceased about the obstruction caused by A3 and preventing him from entering the land. When A3 caught hold of collar of P.W.3 and abused him in filthy language stating that P.W.3 has nothing to do with the land and the dispute is between himself and the deceased, then deceased asked A3 to remove his hand from P.W.3, as the dispute can be resolved by himself and A3. At that time, other accused abused the deceased stating that he is not a native of Tenkayathopu 20 Village and he has nothing to do with this place. Meanwhile, the deceased started moving from that place stating that he has nothing to talk with them, as he has got a Court order and that he would go to the Police Station and seek protection. So saying, he turned around and started talking on phone. At that point of time, A3 is said to have abused the deceased stating 'naa kodaka dammunte ikkade chusukondamu ra'. P.W.1 asked the deceased as to why A3 is talking like that. The deceased informed P.W.1 that because A3 got employment in the Court, he is talking like that. While the deceased was moving towards the road, A2 called the deceased and asked him as to where he is going and that he can settle the matter here itself. The deceased seems to have stated that he is not going to talk and he is going to Police Station. At that point of time, A2 is said to have called A1 and told him to see that the deceased does not go to the Police Station and to kill him. Then A1 called A3, A5 and A8 and moved towards the deceased. When the deceased was walking on the ridge, A1 followed the deceased to some extent, and thereafter, removed the knife from his waist and attacked the deceased.
33. In so far as the attack on the deceased by A1, there is consistency all through. The only issue is, whether appellants - A1 to A3, A5 and A8 can also be convicted with the aid of Section 149 and 114 I.P.C., when A4, A6 and A7, 21 who were present and participated in the same offence along with the others, were acquitted.
34. In the cross-examination of P.W.1, it has been elicited that the name of A8 was not mentioned, either in the F.I.R. or in the Section 161 Cr.P.C. statement recorded by the Police. It is not as if P.W.1 was not aware about A8. In the evidence in chief he says that he knows A1 to A8, who are residents of Tenkayathopu Village and A1, A3 and A8 are brothers. He further goes to the extent of saying that he knows all the accused by their surnames as well. That being the position, he could not have missed mentioning the name of A8 in the F.I.R. or in his statement recorded under Section 161 Cr.P.C., if really A8 was present at the scene along with other accused. Though witnesses now depose about the role of A8, but in the earliest documents, viz., F.I.R., inquest and in the Section 161 Cr.P.C. statement of witnesses, more particularly P.W.1, who claims to have gone along with the deceased and also tried to go near the deceased after the attack, failed to mention the name of A8 as one of the person present at the scene. Further, the name of A8 came to be mentioned for the first time while giving evidence in the Court stating that on being called, A3, A5 and A8 proceeded along with A1 towards the deceased, which is not the version in any of the earlier documents.
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35. Further, P.W.1, in his evidence, admits that in Ex.P1 he has not stated about A3 causing obstruction to P.W.3 in entering into that land and the same being informed to deceased. He further submits that he has not stated either in Ex.P1 or in his Section 161 Cr.P.C. statement that A3 caught hold of the collar of P.W.3 and abused him in filthy language and informed P.W.3 that he has nothing to do with the dispute. He further admits that he has not stated in Ex.P1 and in Section 161 Cr.P.C. statement about the deceased asking A3 to remove his hands from P.W.3. He further admits that he did not state to Police in his Section 161 Cr.P.C. statement or in Ex.P1 about the deceased talking on phone, while moving towards road and also about A3 abusing the deceased and asking him to settle the matter there itself instead of going to the Police Station. He further admits that he did not state in his Section 161 Cr.P.C. statement or under Ex.P1 about A2 calling the deceased to settle the issue and also about the deceased informing A2 that he has nothing to talk and moving towards the road. He further admits that he did not state in these two documents about A1 calling A3 and A8 to come along with him. Though P.W.1 claims that they have assembled on that day to plant paddy crop, but, his own admission show that P.W.3 never brought paddy to the field for plantation.
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36. It will be useful to extract the answers elicited in the cross-examination of P.W.1, which are as under :
"It is true that in Ex.P1 I have not stated that A3 causing obstruction to L.W.4 Gangaiah to enter into that land same was informed to Subramanyam by Gangaiah. It is not true to suggest that same fact not stated in my 161 Cr.P.C. statement. It is true that I did not state to Police in my 161 Cr.P.C. statement or in Ex.P1 that Subramanyam talking in the phone moved towards road. It is true I did not state in my Ex.P1 or in 161 Cr.P.C. statement that A3 abused to Subramanyam and asked him to having guts (Na kodaka Dhammunte Ikkade Chusukuntamu ra). I did not state in Ex.P1 or in my 161 Cr.P.C. statement that A2 called to deceased Subramanyam that called Subramanyam and settled the issue, and also I did not state in Ex.P1 and 161 Cr.P.C. statement. Then Subramanyam nothing to talk and moved towards road. I did not state that A1 called to A3 and A8 stating that come and kill Subramanyam here itself. A1 chased deceased Subramanyam at a distance of 30 meters and attacked."
37. At this stage, it will be useful to refer to the evidence of Investigating Officer with regard to the improvements in the evidence of P.W.1. Though the prosecution sought to examine P.Ws.1, 3, 5, 7, 9 and 10 as eyewitnesses to the incident, but the evidence of Investigating Officer - P.W.16 show that in the First Information Report or in the inquest, only P.Ws.1 and 3 were mentioned as eyewitnesses to the incident. He further admits that the name of A8 does not figure as an accused either in Ex.P1 or Ex.P4-inquest report. His investigation further discloses that information about the incident was given to P.W.2 over phone by P.W.1 prior to 24 giving Ex.P1 - Report. According to him, his investigation revealed that P.W.1 gave Ex.P1 report to the Police at the instance of P.W.2. It will be useful to extract the relevant portion, which is as under :
"It is true that name of A8 not found place as an accused either in Ex.P1 or in Ex.P4 inquest report. The witnesses examined at the time of inquest the name of A8 not stated by the witnesses. According to my investigation P.W.1 on phone informed about the incident of murder to P.W.2 over phone prior to giving Ex.P1 report. According to my investigation P.W.1 gave Ex.P1 report to Police at the instance of P.W.2. I did not seize call data regarding phone conversation between P.W.1 and P.W.2 on the date of incident. I did not collect Court record to know about dispute between accused and deceased. Though I got knowledge about civil disputes between them, but I did not verify and investigate regarding civil disputes between accused and deceased. As per Ex.P1 report, P.W.1 and 3 names are mentioned as eyewitnesses. There is no agricultural operation neighbor to scene of offence lands. Witness adds that there were agricultural operations at a distance, I have no idea owners of that agricultural lands where in Agricultural operations took place, but there are plantations."
38. From the evidence of P.W.1, who is said to be a crucial witness to the prosecution case and where the evidence of all other witnesses is in tune with the evidence of P.W.1, it is very much evident that he has been changing the version from stage to stage. The version with regard to A3 abusing the deceased or challenging the deceased and A2 calling upon the deceased to settle the matter at the spot itself does not find place in any of the earlier statements. The same, in our 25 view, is an improvement from what he has been stated before the Police during investigation. In fact, as observed by us earlier, he goes to the extent of involving A8, who is said to have gone along with A3 and A5 on the call of A1.
39. Coming to the evidence of P.W.2, he is not an eyewitness to the incident, but information about the incident was given to him on phone by P.W.1. Coming to the incident proper, the information furnished to him by P.W.1 is to the effect that when they proceeded towards the disputed site, all the accused were present in the field. P.W.3 informed to the deceased that these accused are not allowing P.W.3 to raise crop in that land. At that time, the deceased asked the accused as to why they are not allowing P.W.3 to cultivate that land. Then, A3 is said to have placed his hand on P.W.3 and questioned as to who is the owner of the land. Then the deceased informed that the Court gave a judgment in his favour. At that time, A3 stated that the Court and Police Station have nothing to do. If anything is there, it will be decided there itself. At that time, A2 seems to have stated that it is not the native place of P.W.3 and the deceased has nothing to do in that place. Meanwhile, all the accused are said to have abused the deceased and came upon the deceased and tried to beat the deceased. Then, the deceased turned towards the road and started moving. At that time, A2 asked A1 to kill the deceased there itself without allowing him 26 to go to the Police Station. A3 and A5 and others came towards the deceased by running. Meanwhile, A1 took the knife from his waist and hacked the deceased. In the cross- examination P.W.2 admits that the name of A8 was not informed to him by P.W.1. He further admits in the cross- examination that he was informed about the incident at 9.30 AM by P.W.1. He further admits that A1 and others had quarrel with the deceased and hacked him with knife. He admits that he did not mention the names of A2 to A7 and also about P.W.1 informing him about their participation in the offence. It will be useful to extract the same, which is as under :
"It is true that P.W.1 did not inform the name of A8 to me in connection with this case.
I stated before the Police at about 9.30 AM P.W.1 informed to me on phone Radhaiah and all others had a quarrel with my father and hacked my father and killed with a knife. I did not state before Police the names of A2 to A7, that P.W.1 informed to me they participated in the offence and myself and my father residing in one house."
40. It is no doubt true that P.W.2 is not an eyewitness to the incident, but he was informed about the incident by P.W.1 and at his instance only P.W.1 lodged the report. His own admissions show that he failed to mention the names of A2 to A7 before the Police. If really the incident happened in the manner spoken to by P.W.1 and when the information was passed on to P.W.2 and when the First Information 27 Report was lodged on the instructions of P.W.2 by P.W.1, definitely P.W.2, while being examined by the Police, would have mentioned the names of A2 to A7. Be that as it may, his evidence-in-chief goes in tune with the evidence of P.W.1, whose evidence we have discussed earlier, about the improvement from what he has stated earlier, except to the extent of A1 participating in the commission of the offence and A2 asking A1 to kill the deceased there itself without allowing him to go to the Police Station. In so far as other accused following A1, as observed by us earlier, there is an improvement from stage to stage and only the common name that figures is that of A3, but, however, the role played by A3 in preventing P.W.3 from entering the land is an improvement and the same is being spoken to for the first time while giving evidence in the Court.
41. P.W.3 is an eyewitness to the incident. He, in his evidence, deposed about the arrival of P.W.1 and the deceased in a car and when all three of them reached the land, they noticed accused present in that land. He speaks about A3 placing his hand on his shoulder and questioning him about his rights over the land. Meanwhile, the deceased intervened and stated that P.W.3 has nothing to do and if there is anything, it should be with the deceased, as he got favourable orders from the Court. At that point of time, A2 intervened stating that the Police Station and Court orders have nothing 28 to do and the matter may be settled here itself. Meanwhile, the deceased stated that he is going to Police Station and moved towards the main road. At that point of time, A2 called A1 stating that the deceased should not be allowed to go to Police Station and he should be killed here itself. Meanwhile, A1 called A3, A5 and A6 and moved towards the deceased. According to P.W.3, A1 ran towards the deceased, picked up the knife from lungi waist and attacked on the shoulder and neck.
42. In the cross-examination, P.W.3 admits about existence of number of cases against him. According to him, a case under Section 354 I.P.C. was registered against him at Venkatagiri Police Station. That case was filed by one, Choppa Padma in crime No.186 of 2006 of Venkatagiri Police Station. He was shown as A3 in the said case. Ex.D8 is the F.I.R. and Ex.D9 is the charge-sheet in the said case. He was also shown as accused for the offence punishable under Section 302 I.P.C. in respect of an incident at Kanchanapalli of Srikalahasthi Mandal, but the said case ended in an acquittal. Apart from that, it has been elicited that, when he raised Jeelaga crop by entering into an agreement with the deceased, accused have not raised any objection. According to him, now and then he used to visit that land and accused did not raise any objection during that period. Mediation was said to have been conducted at Kalahasthi, but he did not 29 inform the mediators about the violation of the terms of mediation by the accused. He admits that he did not give a report about the acts of the accused. He further admits that, on the date of incident, he went to that land to plant paddy, but he did not take any paddy seedlings along with him and Police also did not seize seedlings during the course of investigation. He further admits that there is no written lease agreement between himself and the deceased. It will be useful to extract the evidence, which is as under :
"When I raised Jeelaga crop accused not raised any objection. Now and then I used to visit that land about during that two months time by that time also accused did not raise any objection. After my planting of that Jeelaga plant, mediation raised at Kalahasthi. I did not inform to mediatos about violation of the mediation terms by accused. I did not report to Police about the act of the accused, that they ploughed that Jeelaga crop. On that day, I went to that land to plant paddy. Police not examined where can I bring paddy seedling in that land on 10.11.2012. I did not take paddy seedlings along with me. Police also not seized that seedlings during the course of investigation. There is no written lease agreement between myself and Subramanyam, I did not produce any evidence before the Police that I took the land on lease from deceased."
43. Further, it is to be noted here that, his evidence is also silent with regard to the presence and participation of A8 in the commission of offence; apart from that it is also to be seen that, his evidence is inconsistent with regard to the persons who proceeded towards A1 on being called by him. 30 His evidence is silent with regard to A3 abusing the deceased stating that issue, if any, to be settled there itself.
44. Coming to the evidence of P.W.4, he is not an eyewitness to the incident, but he only speaks about the earlier disputes, but, however, his evidence is to the effect that, on the date of incident, he was on the other side of the ridge attending to agricultural operations. His evidence is to the effect that, one Bhaskar informed him through phone that there is galata in their field of Ac.1.04 cents and asked him to leave that place as previously he was attacked. Meanwhile, A1, A5 and A6 came towards him by running. They warned him of the dire consequences as he is supporting the deceased, but, however, he claims to have left that place. Sometime later, he reached the scene of offence, by then, P.Ws.3 and 1 were present. According to him, P.W.3 informed that A1, A5, A6 and other accused, numbering 8, killed the deceased and he referred to the names of eight accused.
45. But, as seen from his evidence, he is not an eyewitness to the incident. He was on the other side of Pellakuru canal and A1, A5, A6 came to him and threatened him. Sometime later, he came to the scene of offence and noticed the dead body on the ridge. Further, P.W.3 is said to have informed him about killing of the deceased by all the eight accused, 31 which is not the case of the prosecution at all. In fact, in the cross-examination, he himself admits that he is not an eyewitness when the accused attacked the deceased and he has also not stated to the Police about P.W.3 informing him about accused 1 to 8 killing the deceased. In fact, his admissions goes to show that a criminal case was lodged against him by A4 in crime No.89 of 2010 under Sections 447, 354, 323 read with Section 34 I.P.C. and is pending trial. Ex.D3 is the C.C. of the F.I.R. Ex.D4 is the CC. of charge-sheet in S.C.No.209 of 2012. This evidence of P.W.4, in our view, may not be of any help to the prosecution. It is clear that on his own showing he is not speaking the truth, since in the cross-examination he admits that information about the attack was never given to him by P.W.3. Apart from that, his own admission show that even A1, A5 and A6 could not have been warned him, since he was on one side of the Pellakuru canal, while the accused were on the other side of the canal. It will be useful to extract the relevant portion, which is as under :
"L.W.10 Bhaskar my son in law made a phone call to me from Tenkayathopu village. L.W.10 Bhaskar not informed about the murder of deceased Subramanyam on phone. A1, A5 & A6 not crossed that Pellakuru canal. I also not crossed that Pellakuru canal towards the above said accused. It is true that when A1, A5 and A6 warned to me I was other side of the canal and A1, A5 and A6 are on the other side of the canal where I am standing. It is true that in between us that Pellakuru Canal separate. I am not an eye witness when 32 accused murdered to deceased Subramanyam. I have not stated to the police that P.W.3 informed to me that accused A1 to A8 killed to deceased Subramanyam."
46. P.W.5 was examined as an eyewitness to the incident. According to him, on 9.11.2012, the deceased asked him on phone to arrange coolies for raising seedlings in his land and asked him to arrange coolies on 10.11.2012. On the date of incident, P.W.5 brought coolies in an auto by 9 AM. By the time he reached there, P.W.1, P.W.3 and deceased were going towards the disputed land. He also followed them along with coolies. By that time, A1 to A8 and some others were present in the disputed land. Though he was at a distance he deposed about P.W.3 informing the deceased that accused are not allowing him for plantation in the disputed land. According to him, A1 and others came on to the deceased Subramanyam highhandedly. Meanwhile, the deceased stated that he has nothing to talk with A1 and others and he was going to Police Station. He then moved towards road. At that time, A2 asked A1 that deceased Subramanyam is going to Police Station and not to allow him to go to Police Station and kill him there itself. A1 called A3, A5, A6 and A8 and then, A1 crossed the field and attacked the deceased. In the cross-examination, it has been elicited that in the year 2009, P.W.5 lodged a private complaint under S.Cs. & S.Ts. (PoA) Act against A1, A4, A6, A7 and another. Though he 33 denied the suggestion about the deceased not informing him over phone to bring coolies, but investigating officer in his evidence admits that P.W.5 did not said before him that the deceased requested him to bring coolies. His evidence show that he is also a partisan witness having filed a case in the year 2009 against A1, A4, A6, A7. Apart from that, he also admits about Police filing a case against him for preparing illicit arrack in Chittoor District. In so far as incident proper is concerned, he speaks about eight accused being present at the scene, which is not spoken to by P.W.1 or P.W.3 or P.W.2, as they admit categorically that A8's name was never mentioned at any point of time. He, in his evidence, speaks about A3, A5, A6 and A8 being called by A1, while the evidence of other witnesses with regard to A1 calling accused being different.
47. P.W.6, who is a resident of Tenkayathopu Village, speaks about A1, A5 and A8 coming to her shop for taking tiffin, where they abused her and also disclosed about killing the deceased. They also seem to have stated that they wanted to kill the father of P.W.6 as he is supporting the deceased Subramanyam. When the mother of P.W.6 came to the shop, at that time, they also chased her mother and she ran away towards her house. While P.W.6 was leaving the shop, other accused also came to the shop and thereafter all of them left in the auto. She is not an eyewitness to the 34 incident proper, but speaks about incident, which happened after the incident, for which there is no charge. However, in the cross-examination she admits that she did not state before the Police that she saw the accused beating his mother, but the same is not subject matter of charge, hence, it is not necessary for us to go into this aspect. Further, the evidence of P.W.6 nowhere discloses about she witnessing the incident, or coming to know about the incident through others.
48. P.W.7 is also not an eyewitness to the incident, but, however, she, in her evidence, deposed that, she is the mother of P.W.6 and wife of P.W.4 and that there are land disputes between deceased and A1's family. On the date of incident, at 9.45 AM, when she came with rice cleaned water to the shop of P.W.6, A1, A5 and A9 came to the shop of P.W.6 and abused her and also that they came upon her stating that they are supporting the deceased. Thereafter, P.W.7 went to her house and then A1, A5 and A8 also came to her house and beat her. But, as observed by us earlier, this is not the subject matter of charge, hence, it may not be necessary for us to delve into the aspect of P.Ws.6 and 7 being threatened or beaten.
49. P.W.8 is a resident of Tenkayathopu Village and driver of APSRTC depot at Venkatagiri. His evidence is also not of 35 much use to the prosecution, as he is also not an eyewitness to the incident. He only speaks about disputes existing between accused and the deceased. He only speaks about his father-in-law P.W.4 being beaten by the accused every year and also about talking to his father-in-law on phone and asking him to leave the place because of galata. In our view, nothing much turns around in his evidence, as he is not an eyewitness to the incident and on his enquiry P.W.1 stated that the accused i.e., A1 to A8 bet and killed the deceased and they wanted to kill P.W.4. This version of P.W.8, in our view, is totally contrary not only to the case of the prosecution, but also to the evidence of P.W.7. Hence, it cannot be said that the evidence of this witness corroborates or helps the prosecution in bringing home the guilt of the accused.
50. Even P.W.9 is not an eyewitness. She only speaks about receiving phone call from P.W.6 about A1, A3 and A8 coming upon them and assaulting P.W.7, but she is not an eyewitness to the incident. She only speaks above conversation between him and P.W.6, which, as stated by us earlier, is not the subject matter of charge and this incident has taken place at a different place which cannot form part of the very same transaction.
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51. P.W.10 was examined as eyewitness to the incident. According to him, he knows all the accused and the deceased. One day prior to the death of the deceased, A1 asked him to arrange coolies to work on the next day for plantation in the disputed land. He collected coolies and came to the disputed land. By that time, A1, A5, A6 and other persons were present. He states that he does not know the names of the persons present and he is not able to identify them after the lapse of three years. When he reached that place with coolies, deceased also brought coolies and they also came there. Meanwhile, the deceased stated that he is going to the Police Station. At that time, A2 instigated A1 stating that deceased is going to Police Station and kill him. Then, A1 moved towards the deceased and hacked him on his right hand and when the deceased fell down, he hacked on the neck three times.
52. The evidence of P.W.10 is to the effect that on the date of incident, A1 asked him to bring coolies and he immediately brought them. Deceased also brought some coolies for the purpose of sowing paddy. Due to some disputes between A1 and the deceased, deceased started going towards the Police Station, at that time, A2 instigated A1 to kill, which led to A1 attacking the deceased. Though P.W.10 was examined as an eyewitness to the incident, he does not speak about the 37 instances which took place prior to the attack, except the role of A2 in instigating the deceased to kill the accused.
53. All other witnesses are official witnesses.
54. From the evidence referred to above, it is now to be seen as to whether the prosecution has proved the guilt of the accused against all the offences. As stated by us earlier, A4, A6 A7 were acquitted of all charges. In so far as A8 is concerned, the principal witnesses, namely, P.Ws.1, 2, 3 and 5 categorically say that they did not mention the name of A8 in their earlier statement recorded by the Police under Section 161 Cr.P.C. Even the First Information Report and the inquest is silent with regard to the presence of A8 at the scene, leave alone participation in any form. In a case of this nature where there are disputes between both the groups, false implication of the accused cannot be ruled out, more so, when the report came to be lodged after a lapse of 1 ½ hours, when Police Station is 4 K.Ms. away from the scene of offence. Hence, for the aforesaid reasons, we feel that the presence and participation of A8 in the commission of the offence cannot be accepted.
55. Coming to the role of A5, in the First Information Report given by P.W.1, it has been stated that, he, along with all the accused, came upon P.W.3 and the deceased. In inquest it has been stated that, he, along with A3 and A6, 38 followed A1, but the case against A6 ended in an acquittal and there is no appeal filed by the State against his acquittal. P.W.1, in his evidence, deposed that, A1 called A3, A5 and A8 and then, A1 moved towards the deceased, but this version of P.W.1 is contrary to what has been stated in the inquest, where there is a reference to A6 and not A8. The version given of P.W.1 is given a twist by P.W.3, who, in his evidence, deposed about A1 calling A3, A5 and A6 and left out A8.
56. Coming to the evidence of P.W.5, he, in his evidence, deposed about A1 calling A3, A5, A6 and A8 i.e., he involves "A6", which was not mentioned by P.W.1 and "A8", not mentioned by P.W.3. Therefore, a doubt arises as to whether really these witnesses are speaking the truth with regard to A1 calling the other accused. Even assuming that A1 has called these accused, but, nowhere in the evidence does these witnesses say about participation of either A5 or A3 in the commission of the offence. On the other hand, the evidence on record shows that these witnesses were at a distance of nearly 80 meters when A1 took out a knife from his shirt and attacked the deceased. We will deal with this aspect of removing the weapon a little later, but, as things stand, calling of A3, A5, A6 and A8 by A1 does not anywhere lead to an inference that these accused moved towards A1 with a view to kill him. In fact, none of them were armed with any weapon. If really all the accused (except A1) had any 39 intention to attack the deceased or P.W.3, on that day, definitely they would have come armed with some weapon or moved holding some agricultural tool to attack the prosecution party. A vague statement is made by P.W.3 that all the accused on that day have assembled to attack them, but, nowhere in the evidence it has come on record that there was prior information to the accused about P.Ws.1, 3 and deceased coming to the lands for planting paddy. Things would have been different had at least paddy been brought a day earlier and placed near the land. As observed by us earlier, P.W.3 categorically admits in his evidence that he did not bring paddy to the land on that day, though they came to plant paddy.
57. At this stage, it is also to be noted that even earlier P.W.3 raised janumu after the agreement with the deceased, but none of the accused objected to raising of such crop and they never obstructed P.W.3 when he visited his land. They only went for a panchayat at Kalahasthi where both the parties were directed not to enter the said land for the period of five months. Subsequently, accused is said to have violated by entering the land for which there is no evidence except the statement of P.W.3. That does not by itself mean that they were in the land on that day with an intention to kill the deceased or attack P.W.3. As observed by us earlier, these accused never had any information about the deceased 40 coming to the said land from Nellore. Further, the deceased was not a resident of the said village. He was staying in Nellore, so probability of accused anticipating the arrival of the deceased along with P.W.3 on that day and that too in the early hours at 9 AM would be too remote. Hence, merely because A3 and A5 were present at the scene, it cannot be said that they had any common object or intention to kill the deceased and that they shared common object or intention to aid A1 in killing the deceased. Hence, we feel that the benefit extended to A4, A6 and A7 can also be extended to A3 and A5, more so, when the involvement of A3 in questioning P.W.3; placing hands on P.W.3; A3 abusing the deceased in vulgar language and also saying that the issue be settled here itself was never spoken to by P.W.2 or P.W.1 either in the F.I.R., inquest or in the earlier statements recorded by the Police under Section 161 Cr.P.C. It is also to be noted that the version of P.W.3 that A3 was obstructing him from entering the land was also not spoken to in the earlier statement, which omission was extracted earlier.
58. When the involvement of A3 is excluded from consideration, what remains is that he was present in field and when A1 called, he, along with A5, A6 and A8 moved towards A1. Therefore, we feel that both A3 and A5 stand on the same footing as that of A4, A6 and A7 and they can also be given the same benefit.
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59. Coming to A2, she is a lady and wife of one Muni Krishnaiah (A6). It is no doubt true that her name figures in the F.I.R. and the role attributed to her in the F.I.R being that she instigated A1 to kill the deceased so as to prevent him from going to the Police Station. But, however, P.W.1, who lodged the report, changed his version in the inquest and attributed the role of instigating A1 and preventing the deceased from going to Police Station to A4 and A7 as well (A4 and A7 were acquitted). While giving evidence in the Court, he improves his version with regard to the role of A2 by not only attributing the role of instigating A1 to kill the deceased and preventing him from going to the Police Station, but also speaks about A2 calling the deceased and asking him to settle the issue there and then itself. As stated by us earlier, the second issue - with regard to settlement of issue at the spot was not mentioned by P.W.1 in Ex.P1 or in the 161 Cr.P.C. statement. The version of P.W.1 with regard to A2 instigating A1 was spoken to by P.W.3 and P.W.10 as well. But, the learned counsel for the appellant submits that, because of disputes between the parties and since A2 was leading the dispute against the prosecution party, she has been falsely implicated by attributing the role of instigation. According to him, even accepting such version, an offence under Section 302 I.P.C. read with Section 149 or 114 I.P.C. cannot be made applicable to A2, for the reason that, the 42 evidence on record does not anywhere disclose/reveal A2 being armed with weapon to kill the deceased. Even as per the case of the prosecution, at the time when A2 exhorted A1 to kill the deceased, she was not carrying any weapon in his hand. It is nobody's case that all of them including A2 was aware about A1 having a knife underneath his shirt. In fact, none of the witnesses even say that it is very common for all the villagers, including A1, to carry weapon of this nature underneath the shirt or pant or knickers, as the case may be. Further, there is no charge against the A2 with regard to instigation. Therefore, the statement of A2 to attack and kill the deceased even accepting it to be true, it must have come out spontaneously, having regard to the disputes between the parties. On the other hand, it has come on record that all these people were in their agricultural land doing their agricultural operations. Though she may not stand on the same footing as that of other accused with regard to very presence, but, at the same time, the role attributed to A2, in our view, would not show that she had common object along with other accused or that, she, along with others, abetted A1 in commission of the offence.
60. However, as seen from the F.I.R., Inquest and the evidence of witnesses, which we have referred to earlier, it is very much clear that the role of A1 is consistent. All the witnesses in one voice speak that he chased the deceased on 43 the ridge, attacked him, which was warded off by the deceased with his right hand, as a result of which, he fell down upside down in mire land, thereafter, A1 is said to have attacked the deceased thrice on his neck. The medical evidence corroborates the evidence of eye-witnesses on this aspect.
61. In so far as the role of other accused in instigating the A1 to attack, after the deceased fell upside down in the mire land is concerned, the same, in our view, is not consistent. Neither F.I.R. nor inquest nor the evidence of P.W.3, 10 and others show that the attack on the deceased came to be made by A1 on the instigation of other accused. In fact, P.W.1, in his evidence, speaks about all the accused instigating the first accused to attack the deceased after he fell down, but that version was disbelieved and three of the said accused present were acquitted. Even otherwise, the evidence of P.W.1 does not get corroboration, on this aspect, from other witnesses.
62. Therefore, A1 can be safely convicted under Section 302 I.P.C. and accordingly, we confirm the conviction and sentence passed by the trial court against A1 for the offence punishable under Section 302 I.P.C., while setting aside the conviction and sentence passed by the trial court against other accused, namely, A1, A2, A3, A5 and A8 for the 44 offences punishable under Section 143 I.P.C. and Section 302 read with Section 149 I.P.C. and Section 302 read with Section 114 I.P.C. in Sessions Case No.156 of 2014 on the file of the VII Additional District & Sessions Judge, Gudur, by judgment dated 17.3.2016. Thus, the appellants - accused Nos.A2, A3, A5 and A8 are acquitted of all charges and they shall be set at liberty forthwith, if not required in any other case. Fine amount paid if any shall be refunded to the appellants - A2, A3, A5 and A8.
63. Accordingly, the Criminal Appeal is allowed in part.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE B.KRISHNA MOHAN Date : 4.9.2020 skmr/amd