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1. In view of the divided opinion of the two learned Judges constituting the Division Bench V. Sivaraman Nair and D. J. Jagannadha Raju, JJ. - This criminal appeal was listed before me pursuant to the order made by the Hon'ble the Chief Justice under S. 392 of the Criminal Procedure Code.

2. This appeal is from the judgment of the learned Additional Sessions Judge, Nellore in S.C. No. 80 of 1990 convicting the thirteen appellants herein - A.1, A.2, A.4 to A.7 and A.9 to A.15 - for committing the murder of one Pothireddy Kodandarami Reddy, son of Dasaratharami Reddy, Sarpanch of Pidathapolur village, Muthukur Mandal, Nellore District on 25-3-1989 at about 10.30 p.m., on the metal road at a distance of about one furlong from Brahmadevam Centre on Brahmadevam-Pidathapolur Road and sentencing them to suffer imprisonment for life under S. 302 r/w S. 149, IPC. They were also convicted under S. 147, IPC and each of them was sentenced to suffer R.I. for one year. A.7, A.9 to A.12 were convicted under S. 148, IPC and each of them was sentenced to suffer R.I. for two years and they were also separately found guilty of the charge under S. 302, IPC and sentenced to suffer imprisonment for life. In all 19 accused were tried by the learned Additional Sessions Judge on various charges including the murder of the deceased Kodandarami Reddy and for attempting to commit the murder of PW 2 - Ravikumar Reddy. Six of the accused - A.3, A.8, A.16, A.17, A.18 and A.19 - were acquitted by the learned Additional Sessions Judge and the rest of them - the appellants herein - were convicted as stated supra.

5A. PW 2, Ravikumar Reddy, became unconscious as a result of the head injury sustained by him and when he regained consciousness after some time, he found Kodandarami Reddy, the deceased, dead in a pool of blood, PW 2 then proceeded to a nearby village - Jangalakandrika - at a distance of 2 to 3 furlongs, woke up PW 8, Palagani Bhaskara Reddy and apprised him about the incident. A car was brought by PW 8 in which PW 2 was taken to the Government Hospital, Nellore, where he was admitted as an in-patient. On receipt of information from the hospital authorities a wireless message was flashed by the IV Town Police Station, Nellore to Muthukur Police Station and on receipt of the same, PW 29, Shaik Masthan, Head Constable, reached the hospital and recorded the statement of PW 2, Ex. P.2. He returned to the Police Station and registered the same as Crime No. 13/89 under Sections 302 and 307, IPC and submitted express F.I.Rs., to all concerned. Ex. P. 45 is the F.I.R., sent to the Court. The Judicial First Class Magistrate, Nellore, PW 27, on requisition, went to the hospital and recorded the dying declaration of PW 2, Ex. P.40 at 4.30 a.m., on 26-3-1989. PW 30, Sub-Inspector of Police, on receipt of information, reached the scene of offence at 00.30 hours on the intervening night of 25/26-3-1989 and after searching the scene of offence, could not find anything. On the next day at 6.30 a.m., PW 31, Inspector of Police, on receipt of information, reached Brahmadevam Centre at about 7.30 a.m., and noticed the body of the deceased in a ditch on the south of the road. He also found the motor-cycle, MO 1, chappals, MO 2, spectacles, MO 3, and a blood-stained knife with handle, MO 9, which he seized under a mahazar, Ex. P.10.

15. The scene of offence is at a distance of one furlong from the branch road as spoken to by PW 31, Inspector of Police. At about 10.30 in the night, the offence took place. According to PW 2, he and the deceased had left Nellore at about 9.45 p.m., on 25-3-1989 on a motor-cycle. The deceased was driving the vehicle and he (PW 2) was on the pillion. He says that when they covered a distance of one furlong from the road junction, one person aimed a blow on the deceased but as the latter escaped, it fell on his head above the left ear. He fell down immediately on the road and lost consciousness. After he regained consciousness, he found Kodandarami Reddi (the deceased) dead in a pool of blood. He could not identify any of his assailants. Evidently, after he fell down, he was attacked with sticks and knives and this is clear from Ex. P.16, wound certificate, issued by Dr. B. Rajeswari, who examined him on that very night itself in the early hours at 1.30 at the Government Hospital, Nellore. The wound certificate, Ex. P.16, shows as many as six incised wounds, four abrasions and one contusion. Beyond establishing that the occurrence took place at about 10.30 in the night on 25-3-1989 on the road leading to Pidathapolur at a distance of about one furlong from the road junction, the evidence of PW 2 does not indicate anything more. That is the reason why the prosecution is relying, primarily, upon the testimony of PWs 5 and 6 to connect the appellants with the crime in question.

17. PW 5 belongs to the group of the deceased. He was figuring as A. 8 in C.C. No. 10 of 1988 on the file of the Special Mobile Magistrate's Court, Nellore in which the deceased and PW 1 were A.2 and A.1 respectively; Ex. P.3 is the certified copy of the judgment. He was also a co-accused along with PW 1 and the deceased in C.C. No. 207 of 1987 in which the complainant was A.4 in this case. C.C. No. 10 of 1988 arose out of Crime No. 44/87 registered by the Muthukur Police Station on a complaint lodged by the present first appellant (A.1) under Sections 147, 148, 427 and 324 r/w 149, IPC. There is a counter case - C.C. No. 9/88 - in which the present first appellant (A.1) was figuring as an accused. When there are factions in the village and when PW 5 had noticed the opposite group people armed with sticks and axes and proceeding in a group, in the normal course it was expected of him to inform the same to PW 1, the father of the deceased and the leader of their faction. What he claimed to have seen was not a routine occurrence; his evidence that he slept at home without informing anybody as to what he had seen does not sound natural. One more infirmity of a serious nature discernible in his evidence is that he did not state before the police that he stayed on in Kakupally village that evening to eat night meal at his daughter's house on her insistence. Of the 19 accused tried in this case by the learned Additional Sessions Judge, A.11, A.12, A.16, A.18 and A.19 are residents of Nellore. Strangely, PW 5 had identified A.11 and A.12 also as two of the 12 assailants he had seen on the night in question. He could not have seen closely the 12 assailants for the reason that had his presence been noticed by any of the 12 assailants, who admittedly belonged to the opposite faction, his life itself might have been in jeopardy. By a few moments of observation - assuming that such a keen observation was made by PW 5 - it could not have been possible for him to identify persons who are utter strangers like A. 11 and A.12. One more suspicious feature in his evidence is that he did not identify A.15, a resident of Pidathapolur, as one of the assailants and this assumes vital significance in view of the assertion of the prosecution that A.15 to A.19 also had participated in the commission of the crime as confessed by A.15 in his retracted extra-judicial confession made to PW 7. That PW 5 was examined at the inquest on 26-3-1989 and in his statement, he suspected A.1 to A.14 does not, in my view, lend credence to his testimony.