B. Subba Rao And Others v. Public Prosecutor, High Court Of A.P At Hyderabad .

M.K Mukherjee, J.— This appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 31-12-1992, rendered by the Andhra Pradesh High Court in Criminal Appeal No. 256 of 1991 whereby it reversed the order of acquittal recorded in favour of the seven appellants herein by the Sessions Judge, Ongole in respect of charges under Sections 148 and 302/149 IPC and convicted them thereunder. The gravamen of the charges was that on 26-2-1988 at or about 6.30 p.m the appellants (who were arrayed as A-1, A-2 and A-4 to A-8 respectively in the trial court and hereinafter will be so referred to) along with A-3 (who died during the pendency of the trial), formed an unlawful assembly in the office of the Mandal Revenue Officer, Peda Cherlopalli (“P.C Palli” for short) village armed with deadly weapons with the common object of committing the murder of Nalluri Thirupathaiah of Village Marella and in furtherance of that common object did commit his murder. The charges were based on the following prosecution case:

2. (a) A-1 to A-5, A-6 and A-7 and A-8 were residents of Villages Marella, Peda Alavalapadu and Gudevaripalem respectively. A-1 was the President of Telugu Desam Party of P.C Palli Mandalam and A-2 to A-8 were his friends and associates. The deceased, Tirupathayya (PW 1) and Brahmayya (PW 2) were residents of Marella village whereas Gangayya (PW 3) was a resident of Pothavaram village. Both these villages were within the jurisdiction of P.C Palli Mandalam. Suryanarayan Rao (PW 4) was the Mandal Revenue Officer of P.C Palli Mandalam at the material time.

(b) Since 1984, two rival political groups were functioning in Marella village, one led by A-1 and the other by the deceased; and a number of criminal cases instituted by the groups against each other were pending. In February 1987, elections were held there for the Mandal Praja Parishad in which the wife of A-1 was elected President of the Parishad while the deceased was elected as President of “Single Window Society” of P.C Palli Mandalam.

(c) In the following year, i.e 1988, February 27, was fixed as the date for filing nomination papers for the panchayat election. Some of the candidates for such election were to file, along with their nomination papers, extracts of voters' lists and their caste certificates. As such, on 26-2-1988 a number of people came to the office of PW 4 to obtain those documents. One of them was A-1, who approached PW 4 for caste certificates and extracts of voters' lists for his party members. Following him came the deceased, PW 1, PW 2 and PW 3 at or about 6 p.m with a similar request. While they were sitting in the office of PW 4, A-1, who had left his (PW 4's) office in the meantime, came back and requested PW 4 to visit Pothavaram village to consider the inclusion of about 40 persons, who were his followers, as voters. The deceased however insisted that PW 4 could not leave the office without issuing the voters' lists and caste certificates asked for by him. A-1 then left the office saying he would come back within half-an-hour and asked PW 4 to complete his job in the meantime.

(d) Sometime later (at or about 6.30 p.m) the seven appellants along with A-3 rushed into the office of PW 4 armed with deadly weapons and started beating the deceased. While A-1 beat him with an axe on his neck, A-2 beat him with a similar weapon on his right forearm and head. Thereafter the others stabbed the deceased indiscriminately with knives resulting in his instantaneous death. Then they fled away in a jeep and a car.

(e) On the following morning PW 1 went to Kanigiri Police Station at or about 8.30 a.m and submitted a written report of the incident (Ex. P-1) to SI Sankara Reddy (PW 10). On that report PW 10 registered a case (Crime No. 26 of 1988) and sent copies of the report to all concerned. On receipt of a copy of the report Srihari Rao, Inspector of Police, Kanigiri (PW 11) left for Kanigiri at 9 a.m He visited the scene of offence, prepared observation report (Ex. P-2) in the presence of Kesavarao (PW 6) and other mediators, prepared a rough sketch of the scene of offence (Ex. P-15) and seized some articles (MOs 4 to 10) under a seizure list (Ex. P-2). PW 11 also conducted inquest over the dead body of the deceased in the presence of PWs 1, 2 and 3 and others and then sent the corpse for post-mortem examination.

(f) Dr Rammohana Reddy (PW 7), Assistant Civil Surgeon, Government Hospital, Kanigiri, conducted the post-mortem examination on 28-2-1988 and found 45 injuries on the person of the deceased including 40 incised wounds. He issued a post-mortem certificate (Ex. P-9) opining that the deceased died due to shock and haemorrhage as a result of the injuries about 36 hours prior to the post-mortem examination.

(g) In course of investigation PW 11 seized a jeep bearing No. AAN-6152 on 29-2-1988 from the garage of one S. Prasad Rao. He also seized a car bearing registration No. APN-7953 on the same day at 8.00 p.m in the presence of G. Ramesh, driver of the said car. On 7-3-1988, PW 11 arrested A-8 and on 31-3-1988, A-2, A-4 to A-6. A-2, A-4 to A-6 made statements (Exs. P-4 to P-7 respectively) before PW 11 pursuant to which he seized two battleaxes and two knives (MOs 11 to 14 respectively) under a panchnama (Ex. P-8) in the presence of PW 6 and another witness. After completion of investigation, the successor of PW 11 filed the charge-sheet.

3. The defence of the appellants was that they were innocent and were falsely implicated due to political rivalry. A-7 took a further defence of alibi and contended that at the material time he was working as Village Assistant in Chennupalli village, which was far off from the place of the incident.

4. In support of their respective cases, the prosecution examined eleven witnesses of whom PWs 1 to 4 figured as eyewitnesses, A-7 examined one witness (DW 1) and exhibited some documents to prove his plea of alibi.

5. On going through the judgment of the trial court we find that it put forth the following reasons for acquitting the appellants:

(i) PWs 1 to 3 were partisan, interested and procured witnesses;

(ii) the non-seizure of the hurricane lamp, which was said to be burning at the time of the incident and with the light of which the eyewitnesses claimed to have seen the incident, by the police during investigation clearly indicated that there was no such lamp and hence the story of identification by its light was untrue;

(iii) the earliest report that was sent by PW 4 to the police station which could be the FIR was not produced during trial, and Exhibit P-1 which was brought into existence during investigation of the case could not be legally admissible as FIR in view of the provisions of Section 162 CrPC;

(iv) the non-examination of the (i) driver of the jeep in which the accused persons allegedly fled away, (ii) the village servant through whom PW 4 claimed to have sent his report to the police station and (iii) other villagers, who lived in and around the office of PW 4, raised an adverse presumption against the prosecution;

(v) the prosecution case suffered from the same infirmity also for non-examination of the fair price shop dealer, who according to it (the prosecution) was present just prior to the commission of the offence in the office of PW 4; and

(vi) the alleged confessional statements of some of the appellants were deliberately concocted and, therefore, no reliance could be placed on the alleged recovery of the weapons of offence pursuant thereto.

6. In setting aside the order of acquittal, the High Court first demonstrated that each of the above reasons was perverse and then, on discussion of the evidence held, that the prosecution succeeded in proving its case beyond all reasonable doubts and that the plea of alibi raised by A-7 was without any basis whatsoever.

7. We have heard Mr Lalit and Mr G. Prabhakar, the learned counsel for the appellants and the respondent, respectively and with their assistance gone through the record. Mr Lalit submitted that having regard to the fact that the trial court detailed and appraised the entire evidence and gave cogent grounds for acquitting the appellants the High Court was not justified in upsetting the same merely because another view of the evidence could be taken. In support of his above contention, Mr Lalit took us through the findings recorded by the trial court to impress upon us that they were the outcome of a proper appreciation of the evidence.

8. That in the evening of 26-2-1988, the deceased met with a homicidal death in the office of PW 4 stands established by overwhelming evidence on record. We need not however detail or discuss the evidence on this point for both the courts below recorded concurrent findings in this regard and those findings were not challenged before us. Since, however, the findings of the trial court in this regard have an important bearing on its other findings we extract the same:

“PWs 1 to 3 stated that all the accused entered into the office room of PW 4 and attacked the deceased with axes and knives. PW 4 who is the Mandal Revenue Officer sitting in front of the deceased, though did not implicate these accused, specifically testified, that ten (10) persons armed with iron rods attacked the deceased. So, regarding the attack on the deceased by the assailants with deadly weapons in the office room of PW 4, is proved Admittedly, the deceased died, in the office room of PW 4, at Peda Cherlopalli. Peda Cherlopalli will hereinafter be called as “P.C Palli”. The evidence of PW 6 coupled with Ex. P-3 inquest report would show that the deceased had met with ‘homicidal death’. In column 15 of Ex. P-3 inquest report, the cause of death of the deceased is mentioned, as ‘homicidal’. The evidence of PW 7 (Doctor) who conducted the post-mortem examination over the dead body of the deceased, and who issued Ex. P-9 post-mortem certificate would go to show, that the deceased had as many as 45 (forty-five) external injuries, and opined, that the deceased would appear to have died of shock and haemorrhage, due to multiple injuries. The date of incident and the place of incident, and the factum of the death of the deceased in the office room of PW 4, instantaneously, are undisputed.”

(emphasis supplied)

9. The next and the crucial question that falls for our consideration is whether the appellants caused the above death in the manner alleged by the prosecution. If the answer given by the trial court to the above question is found to be based on a reasonable view of the evidence the impugned judgment has got to be set aside, for law is now well settled that if two reasonable conclusions can be reached on the basis of the evidence, the appellate court should not disturb the order of acquittal. If, however, it is found that the finding of acquittal is manifestly wrong leading to miscarriage of justice — as has been found by the High Court — the convictions of the appellants have got to be upheld. Keeping in view the above principles we now proceed to consider evidence of the four eyewitnesses, namely, PWs 1 to 4. Since the incident took place in the office of PW 4 we first take up his evidence for discussion.

10. PW 4 detailed the prosecution case, as narrated earlier, except that he did not name any of the appellants as the miscreants. There is nothing on record to show that he was interested in the cause of the prosecution or inimically deposed towards the appellants. Indeed, it was not even suggested to him in cross-examination that he was deposing falsely. It cannot be gainsaid also that he was the most natural and probable witness as the incident took place in his office. His evidence clearly establishes that about 10 miscreants entered inside his office and one of them dealt a blow on the head of the deceased, who was sitting in front of him, with an iron instrument. He further testified that when he saw one of the assailants raising his hand to give another blow to the deceased he ran away towards the field to save himself. In the cross-examination he stated that one fair price shop dealer obtained a release order for palmolive oil at 6.30 p.m Culling his evidence we get that the incident took place between 6.30 and 7.00 p.m and at that time PWs 1 to 3 were also waiting in his room. Besides, A-1 was also in his room sometime before the incident but left the room saying that he would be back within half an hour. As noticed earlier, the trial court disbelieved the evidence of PWs 1 to 3 on the ground that they did not see the occurrence, but due to enmity with the party of the deceased (sic accused) concocted a false story. The unimpeachable evidence of PW 4 that PWs 1 to 3 were present at the material time clearly shows that the above finding of the trial court is patently wrong. While on this point we may also profitably refer to the earlier-quoted passage from the judgment of the trial court where, besides other evidence, it relied upon the evidence of PWs 1 to 3 to conclude that the incident took place in the office of PW 4. Mr Lalit, however, drew our attention to the statement of PW 4 recorded by a Magistrate under Section 164 CrPC wherein he had stated that by 7 p.m on the date of offence all the persons left his office except the deceased and PW 3, and contended that the above statement contradicted his statement in court that all the three witnesses (PWs 1 to 3) were present. According to Mr Lalit PW 4's earlier statement negatived the presence of PWs 1 and 2 at the material time. We do not find any substance in this contention; firstly because the above statement recorded under Section 164 CrPC only indicates that PWs 1 and 2 were not in his office at 7 p.m (by which time the incident was already over) and, secondly because, the earlier statement did not materially affect the sworn testimony of PW 4 that PWs 1 to 3 were present when the incident took place.

11. As regards the comment of the trial court that the non-seizure of the hurricane lamp from the office of PW 4 materially affected the prosecution case, we can only say that the same is baseless. Undoubtedly, at the material time PW 4 was engaged in issuing copies of voters' lists and caste certificates and if by then, darkness had set in, it can be legitimately inferred (leaving aside the positive evidence of PW 4 in this regard) that there would be some source of light to enable him to perform his job. In that context, it was immaterial whether the police seized the hurricane lamp, which according to PW 4 was burning inside the office as it was not electrified.

12. Coming now to the criticism of the trial court that the failure of the prosecution to produce the report that was sent by PW 4 to the police station on that very night — which according to it was the FIR made its case suspect, we may first refer to the evidence of PW 4 on this point. He testified that after the incident he ran to the field and thereafter went to the house of the village servant at 11 p.m and gave a written report to him with a direction to hand over the same to Kanigiri Police Station. Relying on the above testimony the trial court held that that report sent to the police station was the first in point of time and, therefore, the report that was subsequently given to the police station by PW 1 (Ex. P-1) would be inadmissible in evidence as FIR in view of the provisions of Section 162 CrPC. This aspect of the matter was dealt with by the High Court in extenso and the finding of the trial court was taken exception to, with the following comments:

“The learned Judge has extracted the evidence of PW 4 to support his contention that Ex. P-1 is hit by Section 162 of the Code and in fact there was an earlier report given by PW 4 on record. But the learned Judge has not correctly quoted the relevant evidence of PW 4 and only relied upon part of it. It is true that PW 4 in his evidence stated that he sent a report on the night of 26-2-1988 at about 11 p.m through the village servant to Police Station, Kanigiri. Regarding the receipt of Ex. P-1, the evidence of PW 10, SI of Police, Kanigiri, during the relevant period, reads as follows:

‘Prior to PW 1 giving Ex. P-1 to me, I had no information about this crime. None of the persons acquainted with this crime, appeared before me prior to Ex. P-1…. After registering this crime, I issued Ex. P-14 FIR. I received a report from PW 4 through village servant.’

This statement of PW 10 clearly shows that Ex. P-1 was the report received by PW 10 at the earlier point of time regarding this crime and consequently PW 10 registered the same as FIR and before PW 10 receiving Ex. P-1, they did not have any information regarding this crime. His evidence is also specific to show that after PW 10 received Ex. P-1 and after PW 10 issued Ex. P-14 FIR basing on Ex. P-1, he received another report from PW 4 through a village servant and probably he has not taken any action thereon since the same was hit by Section 162 of the Code. Thus what was received by PW 10 regarding this crime at the earliest point of time was only Ex. P-1 which PW 10 correctly registered as FIR and set the law in motion.”

13. Apart from the above comments of the High Court, with which we are in complete agreement, we find that the evidence of PW 10 clearly shows that the report sent by PW 4, through the village servant, was received by him only after investigation was taken up. In other words, the report sent by PW 4 would be a statement recorded under Section 162 CrPC and consequently it could not be admitted in evidence. This aspect of the matter can be viewed from another angle also. Having regard to the fact that PW 4 did not name any of the assailants, suppression of the report sent by him to the investigating agency did not and would not have helped the prosecution in any way. In other words, the prosecution would not have been benefited in any way by suppressing the report that was made by PW 4, more so when, the fact that the incident took place inside the office of PW 4 in the evening of 26-2-1988 was not challenged by the defence. Judged in that perspective even if that report was produced and treated as FIR the prosecution case would not have been impaired in any way much less on the ground canvassed by the trial court.

14. That brings us to the evidence of PWs 1, 2 and 3. All of them claimed to have accompanied the deceased who, according to them, was the leader of the Congress Party of Village Marella, to the office of PW 4 on the fateful evening to obtain caste certificates and copies of voters' lists of Marella and Pothavaram villages so as to enable them to file nominations on the next day for the Gram Panchayat elections. As their such claim is fully supported by PW 4, whom we have no reason whatsoever to disbelieve, it must be said that they were the most natural and probable witnesses to the incident. However, their evidence has to be examined with utmost care and caution as they belong to the rival groups of the appellants and, hence, are partisan witnesses. In narrating the incident they stated that while four of them were inside the office of PW 4, A-1 came there and asked PW 4 to go to Pothavaram to verify the voters' lists. The deceased, however, insisted that only after furnishing the lists and certificates for which they had come, PW 4 could go to Pothavaram. A-1 then went out of the room. Sometime later all the appellants and A-3 entered the room of PW 4, and A-1 dealt two successive blows, one on the head and another on the neck of the deceased. A-2 then beat him with an axe on the right forearm and the others started stabbing the deceased with knives. At that stage all three of them ran away for fear of their lives. While PWs 1 and 3 first went towards the road and then to the fields, PW 2 ran to his village. PWs 1 and 3 next stated that on the following morning they reached Kanigiri by foot, got a report of the incident written by a person of Cherlopalli whom they met there (Kanigiri) and then went to the police station at or about 8.30 a.m and handed over the report (Ex. P-1) to SI Sankara Reddy (PW 10). It is their further evidence that accompanied by the Circle Inspector of Police (PW 11) they came to the scene of occurrence and in their presence he (PW 11) held the inquest.

15. We have carefully gone through the evidence of the above three witnesses and found that except some minor contradictions, the defence could not elicit any answer to discredit them. Besides, the FIR fully corroborated the testimonies of PWs 1 and 3. It was, however, contended by Mr Lalit that the unusual delay of 14 hours in lodging the FIR clearly indicated that PWs 1 and 3 concocted a story to implicate the appellants, who admittedly were their political rivals. We do not find any substance in the above contention of Mr Lalit. The evidence of PWs 1 and 3 clearly indicates that they spent the night in the fields, then walked the entire distance to Kanigiri — which is 10 miles — got the report written there and lodged it at the police station at 8.30 a.m Having seen the ghastly murder being committed by their rivals, it was too much to expect of PWs 1 and 3 to rush to the police station, for reasonable apprehension to their lives in the event of their taking such a step could not be excluded. Obviously, for that purpose PWs 1 and 3 took shelter in the fields in the darkness and proceeded to the police station in the small hours of the following day. We are, therefore, of the opinion that there was no avoidable delay in lodging the FIR. On the contrary, in our view, it was lodged at the earliest possible opportunity.

16. Another submission that was made by Mr Lalit was that though PWs 1 to 3 claimed to have seen A-1 to be one of the assailants, PW 4, who spoke of A-1's earlier presence in his office, did not mention that A-1 was one of the miscreants. This contention of Mr Lalit is also unmerited. From the sequence of events we get that the trouble originated when A-1, who was the leader of the appellants' group, requested PW 4 to visit Pothavaram village while the deceased insisted that the voters' lists and caste certificates sought for by him should be handed over before A-1's request could be entertained. Immediately thereafter A-1 left the place obviously to call his associates and to come fully prepared with arms. It seems to us that lest it be said that he was supporting either of the parties, PW 4 did not name A-1 and for that matter any of the miscreants. We therefore find no reason to disbelieve the evidence of PWs 1 to 3 that A-1, the leader of the group, started the assault, followed by the other appellants.

17. As earlier noticed, the trial court discarded the prosecution case also for non-examination of the driver of the jeep in which the appellants fled away, the village servant and the persons present nearby, more particularly, the fair price shop dealer. The High Court dealt with this aspect of the matter in detail and made the following observations with which we are in agreement:

“It is the case of the prosecution that the accused sped away in a jeep after the offence. It is the submission of the learned counsel for the accused that non-examination of the driver of the said jeep speaks against the prosecution. The jeep driver is not an eyewitness to the crime and consequently he could not have spoken anything regarding the crime proper. At the most he would have stated that the accused had travelled in his jeep soon after the offence. That evidence would have been an additional piece of evidence to strengthen the prosecution case. But the question which we have to consider is whether the trial Judge in assuming that the non-examination of the jeep driver had the effect of displacing the evidence of eyewitnesses about what they actually witnessed. We are of the opinion that the trial Judge was wrong in his assumption that the jeep driver was a material witness. Consequently, inference adverse to the prosecution could not have been drawn from the non-examination of the driver of the jeep.

PWs 1 to 4 in their evidence stated that while PWs 1 to 3 and the deceased came to the office of PW 4 the fair price shop dealer and some persons were coming and going to the room of PW 4, but there is no evidence to show that those persons were present when the occurrence took place. According to the prosecution, PWs 1 to 4 also were present when the offence took place and witnessed the occurrence. Neither the fair price shop dealer nor anybody else, who visited the office of PW 4 earlier were present at the time of the offence. In view of that, non-examination of the fair price shop dealer or others who visited the office of PW 4 in the evening hours on the fateful day, is of no consequence and inference adverse to the prosecution cannot be drawn from their non-examination.”

18. As regards the non-examination of the village servant to whom PW 4 handed over a written report of the incident for onward transmission to the police station, we may reiterate that the report did reach the hands of the police, but only after the FIR was lodged and therefore, there was no need for the prosecution to examine him.

19. So far as the alibi of A-7 is concerned, both the courts below dealt with the evidence given in support thereof at length and found the same unacceptable. Indeed, Mr Lalit also did not advert to this aspect of the matter.

20. Having carefully gone through the evidence of the four eyewitnesses, the FIR and the medical evidence which fully corroborates the ocular version, we are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubts. We need not, therefore, go into the question whether the finding of the trial court regarding alleged recovery of weapons pursuant to the statements of some of the appellants is perverse or not.

21. For the foregoing discussion, we do not find any merit in this appeal and dismiss the same.