Andhra HC (Pre-Telangana)
Adireddy Venkata Reddy And Anr. vs State Of Andhra Pradesh on 2 April, 1996
Equivalent citations: 1996(2)ALD568, 1996(1)ALD(CRI)548, 1996(2)APLJ50, 1996CRILJ3019
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
JUDGMENT N.Y. Hanumanthappa, J.
1. This is an appeal by the accused No. 1 and 2 in SC No. 365/93 on the file of the Sessions Judge, Nalgonda wherein these appellants along with seven others were chargesheeted for the offences punishable under sections 148, and 302r/w 149 of the Indian Penal Code on the ground that they are responsible for causing the death of one Mr. Vootkuru Matta Reddy, a resident of Anajipuram village, within the limits of Penpahad police station of Nalgonda District, only A-1 and A-2 were found guilty for the offences punishable under sections 148 and 302 r/w 149 IPC and the other accused were acquitted of all the charges.
2. A few facts which are necessary for the disposal of this appeal are as follows : All the material prosecution witnesses and the accused are the residents of Anajipuram village. The deceased was also a resident of the same village. Each party belongs to different political party. There were factions between the group led by the deceased and the group led by the accused. The accused belong to CPI(M) and the deceased belonged to Congress (I) Party. PW-3is the wife of the deceased and PW-4 is the son of the deceased. Prior to 5-5-1993 there were disputes between the two groups. Number of cases were filed against both the groups right from Section 107 Cr.P.C., to 302 IPC. Sometime earlier the father of A-1 was murdered and a case was filed against the deceased and some others including PW-I. As a retaliation to the said murder of the father of A-1, it is alleged that the accused killed the deceased.
3. On 5-5-1993 at about 10-30 a.m. the deceased left the house stating that he would go to Suryapet. PW-3 also left the house and went to the house of one Shouramma which is one house away from the house of PW-2. PW-1 met the deceased near Panchayat Office and both of them walked towards bus-stand. On the way the deceased went inside the house of PW-2 who is a carpenter making carts. The deceased went inside the house of PW-2 to see whether the cart given by him for painting was completed or not. Parvathapu Ramaiah PW-2 informed them that he will deliver the cart in the evening. They sat near the cart wheel. At that time, according to PW-1, A-1 came from the neighbouring house with an axe and beat on the neck of the deceased. A-2 also came with an axe and beat the deceased on his head. Due to fear PW-1 ran away. Later several persons came there and beat the deceased. But according to PWs-5 and 6 namely Konda Komaraiah and Mattapally Chinna Gurvaiah, who also claim to have witnessed the incident they found A-1 and A-2 entering the house and beating the deceased with axes. When they shouted saying that the deceased is killed, A-9 who was standing on the a road threatened them not to shout. Later they found A-3, A-4, A-5, A-6 beating the deceased with sticks. Vootkuri Kamalamma PW-3 wife of the deceased on hearing the cries of PW-1, rushed to the house of PW-2 and found A-9 standing outside with a stick. On seeing P.W. 3, A-9 advised others to come outside. When PW-3 was on the road. She saw A-1 and A-2 coming out of the door way holding axes and A-3 to A-8 coming out holding sticks and all of them went into the house of A-2. PW-3 went into the house of PW-2 and found the deceased lying on the ground with several injuries. On 5-5-1993 at about 1 p.m. PW-11 Md. Pasha Miyan. Sub-Inspector of Police heard a rumour about the death of the deceased. Immediately he, along with his staff, left for Anajipuram village. He recorded the statement of PW-1 and sent the same to P. Vivekananda, Head Constable PW-10 for registering the case. PW-10 registered the statement of PW-1 at Ex. P-1 as Cr. No. 11/93 u/ss. 147, 148 and 302 r/w 149 of the Indian Penal Code and sent FIRs to all concerned. Ex. P-14 is the First Information Report. Meanwhile PW-12. S. Seetharamaiah, Circle Inspector of Police visited the scene of offence at 3-45 p.m. and took up further investigation. PW-12 conducted inquest over the dead body of the deceased. Ex. P-3 is the inquest report. He prepared panchanama, Ex. P-4 in the presence of PW-7. During panchanama he seized a pair of Hawai slippers M.O. 9, control earth and blood stained earth and examined PWs-1 to 4 namely Bayya Mallaiah, P. Ramaiah, Vootkuri Kamalamma and Vootkururu Venugopal Reddy. He then entrusted the body for post morterm examination. On 6-5-1993 at 7.20 a.m. PW-9 Dr. Shanker, the Medical Officer at Community Hospital, Suryapet, conducted autopsy over the dead body and issued Ex. P-13 post mortem certificate. According to him the cause of death was due to multiple injuries. On 24-5-1993 PW-12 arrested all the accused in the house of A-1 and interrogated them in the Panchayat office in the presence of PW-8 namely Anumulapuri Mattapalli. Pursuant to the confession made by each of the accused he took them to their respective houses and recovered axes from A-1 and A-2 and sticks M.Os. 3 to 8 from the houses of A-3 to A-8, After completing the investigation, PW-12 filed the charge-sheet before the Court of Judicial First Class Magistrate Suryapet in PRC. No. 66/93. The learned Magistrate after going through the allegations made against the accused found that the case is exclusively triable by Sessions Court. Hence, he committed the case to the Sessions. The learned Sessions Judge, Nalgonda after going through the papers took cognizance of the case and registered it as SC. No. 365/93. The learned Sessions Judge framed the following charges :
"Firstly : That you Vanteddu Jagan Mohan Reddy (A-9) on or about the 5th day of May, 1993 at about 11-30 a.m. at the house of Parvathapu Ramaiah in Anajpur village were a member of an unlawful assembly and did in prosecution of common object of such assembly to wit to do away with Vootkuri Matta Reddy committed the offence of rioting and thereby committed an offence punishable under section 147 of the Indian Penal Code and within my cognizance;
"Secondly : That you :- Adireddy Venkatareddy (A-1), Chennu Venkatreddy (A-2), Vootkuru Ranga Reddy (A-3), Lakkapaka Ramaiah (A-4), Dubani Bikshamaiah (A-5), Kathi Saidireddy (A-6), Lakkapaka Ellaiah (A-7) and Lakkapaka Kotta Ellaiah (A-8) on the same date, time and place mentioned in charge No. 1 above, were a member of an unlawful assembly and did in prosecution of common object of such assembly to wit to kill Vootkuru Mattareddy, committed the offence of rioting and at that time were armed with a deadly weapon to wit axes and sticks and thereby committed an offence punishable under section 148 of the Indian Penal Code and within my cognizance;
Thirdly :- That you : Adireddy Venkatareddy (A-1), Chennu Venkata Reddy (A-2), Vootkuru Ranga Reddy (3), Lakkapaka Ramaiah (A-4), Dubani Bikshmaiah (A-5), Kathi Saidireddy (A-6), Lakkapaka Ellaiah (A-7), Lakkapaka Kotta Ellaiah (A-8) and Vanteddu Jagan Mohan Reddy (A-9), on or about the same day, time and place as mentioned in charge No. 1 above, were member of an unlawful assembly and in prosecution of the common object of which viz., in killing Vootkuru Matta Reddy, some of the members committed the offence of murder of the said Vootkuru Matta Reddy which you knew likely to be committed in prosecution of the common object of the said assembly and you are thereby under section 149 of the Indian Penal Code guilty of committing the said offence of murder, punishable under section 302 of the Indian Penal Code and within my cognizance."
The accused pleaded not guilty when the charges were read over and explained to them and claimed to be tried. Hence, evidence was let in. The prosecution examined 12 witnesses as PWs-1 to 12 and marked 14 documents as Exs. P-1 to P-14 and also M.Os. 1 to 6. Though opportunity was given, the defence did not choose to avail of the opportunity of adducing evidence except marking a portion in the statement of PW-6, as Ex. D-1.
4-5. According to the prosecution, PWs-1 to 6 are the eye-witnesses. PW-1 is the friend of the deceased. PW-2 is the Carpenter. PW-3 is the wife of the deceased. PW-4 is the son of the deceased. PWs-5 and 6 are the relatives of the deceased and also belong to the group of the deceased, However, PW-2 was treated hostile as he failed to support the theory of the prosecution. The trial Court after scrutinising the evidence of the witnesses found that the prosecution proved its case as against A-1 and A-2 only and not against the remaining accused A-3 to A-9. While analysing the evidence, it accepted the evidence of PW-1 as to the participation of A-1 and A-2 in murdering the deceased. Though other witnesses PWs-3 to 6 spoke about the participation of A-1 and A-2 and other accused in causing the death of the deceased, the trial Court disbelieved their version. Regarding Ex. P-1, complaint, the trial Court held that the same has been fabricated. The trial Court rightly accepted the information gathered at the time of inquest as entered in the inquest report. Having held that A-1 and A-2 are responsible for causing the death of the deceased, the trial Court convicted A-1 and A-2 for the offence punishable under section 148 of the Indian Penal Code and sentenced to undergo R.I. for a period of two years and also pay a fine of Rs. 1000/-, in the default they should undergo RI for six months and also convicted A-1 and A-2 for the offence punishable under section 302 r/w 149 IPC and sentenced them to undergo rigorous imprisonment for life. Aggrieved by the said conviction and sentence, A-1 and A-2 preferred this appeal. As against acquittal of the other accused, there is no appeal by the State.
6. Sri C. Padmanabha Reddy, the learned counsel for the appellants argued that the approach of the trial Court in convicting the accused Nos. 1 and 2 is quite incorrect and contrary to the evidence adduced by the prosecution, that the learned Sessions Judge committed a mistake in placing reliance on the sole testimony of PW-1 when he disbelieved the evidence of other witnesses as to the role of their witnessing the incident personally. It is further contended that when the evidence of witnesses, on whom the prosecution relied upon, about the participation of all the accused and as to the death of the deceased is disbelieved, it is not proper to accept the evidence of PW-1 as gospel truth. It is his further case that when the trial Court disagreed with the statement of PW-1 on certain aspects, it committed a mistake in believing him on other aspects. It is his contention that Ex. P-1 has been brought into existence after due deliberations in order to implicate the innocent people when the village is a faction ridden one and the group of the deceased and the accused belong to rival groups and as such no importance need be given to Ex. P-1. It is further contended that there is no explanation why PW-1 remained silent having witnessed the incident and asking Talari of the village to go the police station to make a complaint instead of himself going to the police station and then Talari went to the Sub-Inspector of Police, the Sub-Inspector of Police, instead of recording his statement, he heard and sent him back to the village and then went to the village and records the statement of PW-1, that too when the leaders of the party to which the deceased and PW-1 belong, has arrived in the village. Thus, it is argued that Ex. P-1 complaint was prepared with a view to implicate as many innocent people as possible and there is no explanation why the village Talari, who went to the Sub-Inspector of Police and gave information as to the incident, was not examined.
7. Coming to the oral evidence as to witnessing the incident, PW-1 spoke that he saw A-1 and A-2 entering into the house of PW-2 where himself and the deceased were inside the house and enquiring PW-2 as to the stage of colouring of the cart, but PW-2 in his statement stated that he was not present on the date of offence in the village. PW-1 stated that after the attack by A-1 and A-2 on the body of the deceased, he got afraid and went to some other place and hiding there. In the next breath he says that attacking of the deceased by A-1 and A-2 was also witnessed by other witnesses. It is stated that A-9 was standing outside and warning the witnesses who witnessed the incident that if they reveal the incident they have to face serious consequences.
8. It is not in dispute that the village is a faction ridden one and both the parties belong to different groups. The deceased and the PW-1 were accused in Cr. No. 36/90 under section 148, 302, 324 r/w 149 IPC on the ground that they caused the murder of the father of A-1 and the said case is still pending. Such being the case when all the accused entered the house where both the deceased and PW-1 are present, they would not have confined to attack only the deceased and could have attacked PW-1 also. There is no explanation from PW-11 S.I. of Police why he did not record the statement of Talari. Sri C. Padmanabha Reddy also contended that when A-3 to A-9 were acquitted by giving the benefit of doubt on the evidence adduced by the prosecution, the trial Judge is not justified in convicting A-1 and A-2 on the very same evidence. The learned counsel for the appellants lastly contended that the appreciation of evidence by the trial Court is not proper. Thus contending he sought that the appeal be allowed and the conviction and sentence passed against A-1 and A-2 be set aside.
9. Smt. Suseela Devi, the learned Public Prosecutor supported the Judgment under appeal saying that the trial court took pains to assess the evidence in a proper perspective and tried its best to acquit the innocent and convict the people who are guilty. She further contended that the trial Court disbelieved the evidence of PWs-3 to 6 as their statements did not inspire corfidence and non-examination of Talari, who gave information to the Sub-Inspector of Police, is not so fatal to the case of the prosecution. She further contended that there is no discrepancy between the inquest report and the evidence of the Doctor as to the injuries and cause of death corresponding to the injuries alleged to have been caused by A-1 and A-2 on the deceased. She further contend that involvement of the accused was proved by the confession made and recovery of M. Os alleged to have been used in committing the offence in question. She further contend that the trial Court appreciated the evidence with all seriousness and reached the correct conclusion that accused Nos. 1 and 2 are involved in the commission of the offences alleged, the learned Judge is justified in ordering conviction and sentence passed against A-1 and A-2. Thus contending, she sought that the appeal be dismissed.
10. The prosecution though cited nearly six persons as eye-witnesses, the trial Judge while scrutinising the evidence, accepted the statement of PW-1 only and discarded the statements of others as untrustworthy. Thus, the entire theory of prosecution with regard to involvement of A-1 and A-2 revolves upon the sole evidence of PW-1. To satisfy ourselves how far the trial Court is justified in accepting the evidence of PW-1, we again went through the evidence of PW-1 very carefully. We also compared the evidence of PW-1 which Ex. P-1. While deciding as to the correctness or otherwise of the statement of PW-1 and the genuineness of Ex. P-1 the trial Court came to the conclusion that Ex. P-1 was made after deliberations. According to the learned Sessions Judge, the involvement of A-1 and A-2 in the offences alleged is proved because of their own confessional statements made as to the recovery of the weapons. He, however did not take into account the serious contradictions in the statement of PW-1 made before the Court and earlier during 161 Cr.P.C., statement. It is not in dispute that the accusation make against all the accused is one and the same, witnesses also spoke about as to the participation of the accused in causing the death of the deceased, however, the learned Sessions Judge disbelieved the evidence of PWs-3 to 6 by giving his own reasons. When all the accused were roped in a case and their participation, involvement and object to achieve was one and the same and when they were all tried together, the result should have been one and the same against all the accused instead of acquitting some and convicting the rest. Apart from these, there are several contradictions and improbabilities in the evidence given. If really, the PW-1 was an eye-witness and when he was a co-accused along with the deceased in a case pertaining to the murder of the father of A-1, when A-1 and A-2 saw both the deceased and PW-1 sitting together which was also witnessed by other accused, there is not reason why the accused chose to attack only the deceased and left PW-1 scot free.
11. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or exaggerations, in which case it is the bounden duty of the Court to scrutinise the evidence of such a witness with utmost care. How such evidence shall be appreciated and what should be the principles to accept the testimony of such a sole witness has been laid down by the Supreme Court as long back as in 1957 in the famous case of Vadivelu Thevar v. State of Madras . Wherein the Supreme Court held as follows :
"The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S. 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted".
It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution."
12. In the case of Ugar Ahir v. State of Bihar the Supreme Court held as follows : (Para 6) "The maxim falsus in uno falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. That is what the courts have done in this case. In effect, the courts disbelieved practically the whole version given by the witnesses in regard to the pursuit, the assault on the deceased with lathis, the accused going on a bicycle and the deceased wresting the bhala from one of the appellants and attacking with the same two of the appellants, the case that the accused attacked the witnesses, and the assertion of the witnesses of their being disinterested spectators. If all this was disbelieved, what else remained ? To reverse the metaphor, the courts removed grain and accepted the chaff and convicted the appellants. We, therefore, set aside the conviction of the appellants and the sentence passed on them."
13. The above view has been reiterated by the Supreme Court in Balaka Singh v. State of Punjab wherein the Supreme Court held that (Para 8) :
"It is true that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this can only be possible when the truth is separable from the flasehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so iextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
14. Likewise in Muthu Naicker v. State of Tamil Nadu the Supreme Court held as follows : (Paras 6 and 17) "Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be cannot be easily ruled out. In a faction ridden society where an occurrence takes place in a village involving rival factions, it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more than discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution."
"Although the evidence of a partisan witness must not be discarded on that ground alone, the Court must be on guard to scrutinise their evidence with more than ordinary care. It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the Court as genuine, and whether the story as narrated is probable, judicial approach has to be cautious in dealing with such evidence."
15. Conviction of the appellants for an offence under sections 148 and 302 r/w 149 IPC is bad in law for the simple reason that initially nine were prosecuted out of which seven were acquitted. That being the case, the trial Judge ought not to have convicted the appellants herein for an offence punishable under section302 r/w 149 IPC. This view of ours is fortified by the Supreme Court in the case of Amar Singh v. State Punjab, wherein it was held as follow (Paras 7-8) :
"In assailing the judgment of the High Court, the first point that has been urged by Mr. Frank Anthony, the learned counsel appearing on behalf of the appellants Nos. 1 and 2, is that the conviction of the appellants under sections 148 and 149 IPC is bad inasmuch as of the seven accused, the trial court had acquitted two of them, namely, Amar Singh and Rattan Singh, both sons of Isher Das, and the High Court acquitted the accused Bachan Singh. It is submitted that after the acquittal of the three accused persons out of seven, the appellants who are the remaining four, cannot be held to have formed an unlawful assembly within the meaning of Section 148 IPC and, accordingly, the charges under sections 148 and 149 IPC were not at all maintainable."
"In our opinion, there is much force in the contention. As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or Section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an 'unlawful assembly' is that such assembly must be of five or more persons, as required under section 141 IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained."
16. Almost an identical view has been taken by the Supreme Court in the case of K. Nagammalleswara Rao v. State of Andhra Pradesh, .
17. On a reappraisal of the entire evidence before us, we are of the considered opinion that the approach of the Sessions Judge in convicting the appellants A-1 and A-2 is neither correct nor made on proper appreciation of evidence and adhereing to the legal position laid down by the Supreme Court. Keeping in view the applicability of the law laid down by the Supreme Court on the questions raised, the Sessions Judge ought not to have given a finding as to the involvement of A-1 and A-2 and ought not to have convicted A-1 and A-2 for the offences alleged. As such the said conviction deserves to be set aside. Since we have taken a view altogether, different from the view taken by learned Sessions Judge, it follows that the conviction and sentence passed by the Sessions Judge are set aside. Accordingly, the criminal appeal is allowed and the conviction and sentence passed by the learned Sessions Judge, Nalgonda in SC. No. 365/93, are set aside. A-1 and A-2 shall be set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by them shall be refunded to them.
18. Appeal allowed.