Katta Ramakrishna Reddi v. Krishna Reddy

Sambasiva Rao, J.:-

(1) Prodduvaka is a village in kaikalur taluk of the krishna district, kuruganti appayya sastri, a resident the village was owner of about 160 acres of land, which by indian standards is said to be extensive. If he had a large agricultural farm, he had a very large family as well. In addition to his aged mother himself and his wife, he had as many as eight sons and two daughters.

(2) In the night, when it dawned would be 27th of april 1970, some persons raided his house, trespassed into it looted some belongings of the family and while departing with their booty some of them stabbed him on vital organs of his body, on account of which he very soon thereafter expired.

(3) The police allege that this was a crime perpetrated by naxalites as an item of their programme of robbing the rich and creating confusion in the social fabric of the community by adopting armed revolution against the government established by law. They are alleged to be followers of mao - tse - tung of china, they arraigned as many as 30 persons as having been responsible for this crime. In addition, it is alleged, four others participated in the raid.

(4) The case of the prosecution, as it emerges from the evidence placed by it before the trial court, is that the accused and four others conspired together to loot the house of appayya sastry and kill him. On the night between 26th and 27th of april, 1970 they raided his house at about 1 a. M. Armed with daggers, pesh - cups, revolvers and country bombs etc. , looted cash, and gold and silver ornaments, and sarees, etc. , worth rs. 70,000. While leaving the house some of the raiders stabbed appayya sastry, who died on account of the injuries he had received. As they left the scene the raiders raised mao's slogans.

(5) When the incident happened p. W. 6 an aged clerk of appayya sastry, was sleeping in the front verandah of the house, which faces to the north in the adjoining room, the old mother of appaya sastry was sleeping. In the central hall of the house, sastry himself was sleeping, but alone. P. W. 3, his wife and p. Ws. 2, 4 and 5, his sons and another son were sleeping in the open verandah on the western side of the house. The other children of sastry were either abroad or somewhere else in the country.

(6) The raiders entered the house through the front gate in the north, after posting some of them to guard the front portion. Some of them entered the front verandah. Four out of them caught hold of p. W. 6. On hearing the noise thus ensued and the cries of p. W. 6. P. Ws. 2 to 5 and the other son went into the front verandah. Sastry himself opened the door - way leading on from the main hall into the front verandah and was about to come out four others of the raiders immediately pushed him back into the hall and demanded keys of the iron - safe. He, however, refused to accede to this demand. P. Ws. 2 to 6, who were in the front verandah then heard some sounds like pistol firing and on hearing them, p. Ws. 2 to 5 entered the hall. P. W. 6 continued to be held by four persons in the front verandah itself. Seeing the dangerous position in which they were placed, p. W. 2, a son, who was 24 years of age at that time, and p. W. 3, the wife, pleaded with the raiders not to injure sastry and leave the place after taking away from the house whatever they liked. They requested sastry to hand over the keys. Thereupon, sastry gave the keys to one person. Three of the raiders asked the wife, p. W. 3 to take them to the room where the iron - safe was and she led them to it, which is marked as no. 5 in the plan one of them picked up a torch light from the hall and went into the room. P. W. 5, one of the sons, aged 11 years followed the mother into the room where the safe was. One of the raiders focused the torch on the safe and another attempted to open it, but could not do so. They asked p. W. 3, to open it whereupon she opened a locker, took out a key from out of it and opened the iron - safe. The accused gathered all the cash that was in the safe and after finishing this work the three raiders and p. Ws. 3 and 5 came back into the hall.

(7) When p. W. 3 was taken into the iron - safe room, two raiders asked p. W. 2, the son, to show the place where jewellery and other valuables were kept. P. W. 2, then led them into the room marked no. 6 in the plan through the dining hall. As they went along with p. W. 2, one of the two raiders picked up another torch from the hall. They broke open the almirah, removed all jewellery and some very valuable sarees and other clothes, put them in a rexine box and brought them outside. When all this was taking: place, one of the two raiders was pointing a dagger at the chest of p. W. 2 and at the same time focussing the torch on the almirah. P. W. 4, another son of sastri, who was aged 13 years, also went into that room along with p. W. 2. After collecting these valuables they came back into the hall by which time the raiders who looted the iron - safe also came back into the hall acompanied by p. W. 3 and p. W. 5.

(8) After this the raiders led sastri into the front verandah. P. Ws. 2 to 5 and the other son also came out into the verandah. One of the four accused, who were holding p. W. 6, went up to sastry, pulled out a gold chain with a hanuman locket affixed to it from his neck and two rings from his fingers. Another person likewise removed the rings and bangles from p. W. 3.

(9) After thus finishing the looting part of their work, the raiders took sastry into the open space in front of the varandah. Seven or eight of them surrounded him. Four of them, who had been holding him till then stabbed him with pesh - cups. The deceased fell down. At that time, one of the raiders raised a shout that the time was up and that they should go away. On hearing this call, all the raiders left the place raising mao's slogans. Immediately on their departure, p. W. 2 tried to follow the raiders on his motor - bycycle, but he found that one of the tyres was functured. Then, he brought out his tractor from the shed, put sastry in the tractor and took him to kaikalur ,which is six miles away from podduvaka. P. W. 3 also accompanied her husband and son in the tractor. On their way to kaikalur, p. W. 2 stopped at the house of the local member of the legislative assembly. P. W. 12, informed him about the looting and stabbing, and requested him to telephone to the police. After this, they proceeded to kaikalur where they took sastry to a local medical practitioner p. W. 11. The doctor, on seeing sastry, pronounced him to have been dead. P. Ws. 2 and 3 brought back the body to podduvaka. By the time they returned, the village munsif p. W. 38, the village karnam, p. W. 37 and others gathered at the house of the deceased. P. W. 2 after making a list of all the materials that were missing from the safe, from the almirah and from the boxes, drafted a report, exhibit p - 8 and banded it over to the village munsif, p. W. 38. In the meanwhile, p. W. 12, the member of the legislative assembly, contacted the police at kaikalur and gudivada by telephone. At kaikalur, police constable p. W. 16, received the telephonic message and informed the sub - inspector of police, p. W. 63, who was in his house. P. W. 63, immediately contacted the assistant railway station master, kaikalur, p. W. 13, and requested him to send an urgent message to gudivada. P. W. 13 complied with this request by sending telephonic message to assistant railway station master, gudivada, p. W. 14 and requested him to immediately convey the news to the circle inspector of police, p. W. 74. The sub - inspector, kalidind, p. W. 73, within whose jurisdiction podduvaka village is, received the report, exhibit p - 8 from the village munsif, p. W. 38 and came to the scene of occurrence by 8 a. M. P. W. 74, the circle inspector came by 8 - 20 a. M. Three sarees were found on the roadside in the same village and p. W. 74 also found some ashes of burnt documents in the street. An inquest was held where p. Ws. 2 to 6 and the other son of deceased were examined. Then the body was sent to postmortem.

(10) Immediately thereafter the police began their investigation and search for the culprits and the stolen articles. This process took some time and days and weeks passed by. By june, 1970, they received information that some of the accused were hiding in a casurina tope near manginapudi costal area, which is at a short distance from machilipatnam. P. W. 64, who was the inspector of special squad, on receiving this information led a police force to the place at about 11 p. M. On the 11th of that month. As they were proceeding along the sea shore, they reached a spot where there was a thicket of tress from where the heard threats being hurled at them. A warning given by the police was of no avail; instead the response was shooting from the cluster of trees, as a consequence of which one of the police personnel received a broken pellet on his fore - head. : the officer had no alternative but to give firing orders, which was immediately implemented. Silence followed this firing by the police and thereupon the police entered the thicket where they found two dead bodies. Others, obviously took to their heals. The bodies of the two dead persons were searched and in the pocket of one of them a bundle of currency notes of the value of rs. 2,022 (m. O. 84) and a letter exhibit p - 7o were found. This is a letter alleged to have been written to one ramana immediately after the incident. Ramana was one of the two, who were shot dead in the casurina tope. Photos of the two dead bodies were taken and they are exhibits p - 7 and p - 16. Exhibit p - 7 the photograph of ramana was identified by p. Ws. 2 to 5 as being that of one of the four persons who caught hold of the deceased during the raid.

(11) A week later on 19th june, 1970, one of the culprits was arrested in the bus - stand of gudivada town. He turned an approver and made a confession. On 4th july, 1970 he was granted pardon and was later examined as p. W. 1. However, he retracted that confession, with the consequence that his evidence is of no material utility in the case.

(12) P. W. 74, the circle inspector, gudivada, who was in charge of the investigation, gathered information about all the accused, arrested them and also recovered practically all the articles, stolen from the house of appayya s?stry, from the accused or with the aid of the statements they had made. As many as six identification parades were held by p. W. 59, the judicial first class magistrate, gudivada. They were held on 3rd august, 1970, 6th august, 1970, 3rd september, 1970, 14th september, 1970, 17th october, 1970 and 10th march, 1971. P. Ws. 2 to 6 and some other persons were asked to identify the accused. A - 1 to a. 6 and a - 28 to a - 30 were identified in these parades by one or more of the aforesaid prosecution witnesses. Earlier a preliminary charge - sheet was filed and the final one was filed on 30th march, 1971.

(13) As many as 37 charges were formulated against the 30 accused. It is needless to describe them in detail. Broadly speaking the principal charges were under sections 120 - b, 147, 148, 149, 396, 413, 449 and 460, indian penal code, in addition to the serious charge under section 302, indian penal code.

(14) Accused nos. 29 and 30 refused to plead to the charges levelled against them. But, a - 1 to a - 28 pleaded not guilty to the charges made against them. One of them further pleaded alibi. They alleged that the so called identification was wholly improper and irregular, since either themselves or their photographs had been earlier shown to the identifying prosecution witnesses. The recoveries were all bogus and were nothing but planted articles. In a bid to establish all these charges the prosecution led voluminous oral and documentary evidence. The defence did not lag behind. It examined five witnesses and marked as many as 132 documents. There were 90 material objects.

(15) In a very lengthy and exhaustive judgment, the learned sessions judge closely examined all the aspects and evidence of the case. He rejected the case of conspiracy; he refused to believe that the common object of the unlawful assembly was to commit murder. His conclusion was that the convicted accused and some others had formed themselves into an unlawful assembly with the object of committing dacoity in the house of appayya sastry. Those who committed the offence were naxalites. However, according to him, the prosecution could establish the participation of a - 1 to a - 6 and a - 28 to a - 30 in addition to p. W. 1 in making the raid. He accordingly convicted these 9 accused under sections 449, 460 and 396, indian penal code, and sentenced them to undergo rigorous imprisonment of three yei rs, four years and seven years each, under each of the three counts respectively. Since the common object was not to commit murder, but was only to perpetrate dacoity, held that only those who could be found to have actually stabbed the deceased could be convicted under section 302, indian penal code. In his view four persons participated in the stabbing; but since the prosecution failed to establish which one of them caused which injury, be came to the conclusion that the accused, who participated in the stabbing, could be convicted under section 302 read with section 34, indian penal code. Of the four, who stabbed the deceased, only two were brought up before the court, the other two were either dead or not traced. The two, who were brought to trial, as per the finding of the law court, were a - 1 and a - 29. Since the killing was done in a very cruel and gruesome manner, the lower court came to the conclusion that only the extreme penalty of death would meet the requirements of justice. Accordingly it sentenced a - 1 and a - 29 to death for the offence under section 302, read with section 34, indian penal code. They were further convicted under section 140, indian penal code, and were sentenced two years rigorous imprisonment. A - 2 to a - 6, a - 28 and a - 30 were further convicted under section 147, indian penal code, and were sentenced to one year's rigorous imprisonment. In addition a - 1 to a - 5, a - 8 to a - 10 and a - 12 to a - 2 7 were held to have been in possession of articles stolen at the time of dacoity and were convicted under section 412, indian penal code, and sentenced to undergo three years rigorous imprisonment. All the sentences of imprisonment were to run concurrently. The learned sessions judge completely acquitted a - 7 and a - 11 of all the charges.

(16) .r. T. No. 19 of 1972 relates to the conviction of a - 1 and a - 29 under section 302 read with section 34,, indian penal code and the sentence of death imposed on them. Crl. A. No. 565 of 1972 has been preferred by a - 1 to a - 6, a - 8 to a - 10 and a - 12 to a - 30 against their convictions and sentences.

(17) The state in its turn brought crl. A. No. 802 of 1972 against a - 2 to a - 6, a - 28 to a - 30 contending that they too should have been convicted under section 302, read with section 34, indian penal code, as the common object of the unlawful assembly was not only to commit dacoity but also to kill appayya sastry.

(18) .elaborate arguments have been addressed before us by both sides. The counsel for the accused questioned the correctness of all the findings of the trial court which were against the accused and also the convictions and sentences awarded to them. The learned public prosecutor, on the other hand, has endeavoured to pursuade us to accept that the common object of the unlawful assembly was to commit murder, in addition to commit dacoity and since the presence of a - 2 to a - 6 and a - 28 to a - 30 at the time of the occurrence was established. They should also be convicted - under section 302, read with section 34, indian penal code. There is no appeal by the state in regard to the acquittal of a - 7 and a - 11 and also the acquittal of all the accused for the offence of conspiracy.

(19) .before we take up for consideration the different questions that fall for decision in these appeals, it is necessary to refer to one more aspect of the prosecution case. The village podduvaka was not at the time of occurrence electrified. Appayya sastry used to have a power generator for his residence but that had fallen out of order and use for some time before 27th april, 1970. However, the prosecution witnesses state that at the time of the raid there was moon - light. It is also their version that there were huricane lanterns burning in the house at the time, particularly one in the front northern verandah and another in the main hall. Further there were two fairly powerful torch lights lying in the hall which were picked up by the raiders when they went into the two rooms from where they looted the cash, the jewellery and the clothes. The prosecution witnesses claim that with the aid of the light spread by the moonlight, the huricane lanterns and the the torch they were able to see the accused and could later identify some of them.

(20) It is common ground that none of the accused, or for that matter none of the raiders, belongs to podduvaka. All of them came from different parts of the krishna district, so much so the inmates of appayya sastry's house knew not any one of them before, with the probable exception of one shyam whom p. W. 2 had seen and known earlier as a worker in the tractor shed of adusumilli ramamohana rao at mudinepalli. However, that shyam was not one of the accused brought before the court. Since all the alleged culprits were strangers to the prosecution witnesses, the crucial question would be one of identification of the accused. This aspect of the matter is going to be very prominent in our consideration of the appeals, as it was before the trial court.

(21) .however, there is no dispute about certain basic facts of the case. Quite a large number of persons raided the house of appayya sastry in the intervening night between 26th and 27th of aprils 1970 armed with weapons. It is also undoubted that appayya sastry was having considerable movable assets in addition to his fairly large land holding. During the course of the raid some articles were taken away by the raiders. Some of them stabbed sastry so severally that he died of the injuries very soon thereafter. There were no factions in podduvaka which had generated any factions feelings in the village, in any case, even if there were any, appayya sastry was not in any way associated with them. What is equally clear is that there was no previous enmity between the raiders on the one hand and appayya sastry and his family on the other. Indeed, it can even be said that there was not even acquaintance between them. While testing the various arguments put forward by both sides, these undisputed features of the case should be borne in mind.

(22) As we have already pointed out, the prosecution has adduced quite a large volume of total and documental evidenced nonetheless, its case to a very large extent, rests on the evidence of p. Ws. 2 to 6 who were the then inmates of appayya sastry's house and who claim to have witnessed the actual occurrence in all its gruesome details. Broadly speaking, the prosecution succeeds or fails only to. The extent of the ability of the evidence of these five eye witnesses to sand careful scrutiny, and satisfy the judicial corscience of the court, particularly in regard to the identification of the participants in the tragic event that took place on that night. It cannot be disputed and indeed is not disputed that there was an unlawful assembly, of more than five persons, which raided the house of appayya sastry on that night. It is also beyond doubt that they were armed with knives and other dangerous weapons. The gruesome fact that appayya sastry was stabbed to death make that position as clear as day light. The evidence of p. Ws. 2 to 6 discloses that the persons who entered the premises of the house were at least about 10 or 12 in number. Four of them held on to p. W. 6 and four others pushed and held the deceased. In addition, three or four other culprits were either moving about in the house or keeping watch in the front. This evidence and these circumstances are clinching of the fact that there was an unlawful assembly of a large number of persons, certainly more than five in number, armed with knives and other deadly weapons, who raided the house of appayya sastry for committing certain offences.

(23) .it would be appropriate at this stage to decide what the common object of the assembly was. Both dacoity and murder were the common objects of the raid, according to the prosecution. The learned sessions judge, however, found that dacoity alone appears to be the common object. The defence counsel before us have demurred even to this finding, saying that there is no satisfactory proof of any robbery or looting. The result of crl. A. No. 802 of 1972, preferred by the state, would largely depend upon the answer we give to this question. If the common object was also to kill appayya sastry, then all the members of the unlawful assembly would be liable to be convicted under section 302 read with section 149. Since a - 2 to a - 6, a - 28 and a - 30 have also been held to have been - identified by the prosecution witnesses as being members of the unlawful assembly the learned public prosecutor has maintained that these accused also should have been convicted under section 302 read with section 149, indian penal code though it was only a - 1, a - 29 and two others who had actually carried out the object of killing.

(24) .in our view, the endeavour of the defence counsel to show that even the common object of looting and committing decoity is not established, is an exercise of futility. Once it is concluded that a large number of persons armed with deadly weapons raided the house of the deceased in the dead of the night, broke into his house, opened the iron - safe, cup - boards and boxes containing cash, valuable articles and jewellery and carried away their contents it is a necessary corollary that the common object or at any rate one of the common objects was to loot the house of the deceased. Whether the raiders had also planned the killing of the deceased is another matter and we will consider it anon. But, it cannot be suggested even for a minute that their common object was not looting. It cannot be imagined that all these persons, broke into the house of appayya sastry at the dead of the night armed with deadly weapons, who were wholly unknown to him or to any member of his family, just to pay a courtesy call. They must have had a sinister object behind making this raid. At art from these probabilities of the matter, the evidence in the case is very categorical in this respect. P. Ws. 2 to 6 definitely in one voice say that the raiders, after entering the premises, first caught hold of p. W. 6, who was sleeping in the front verandah on the north. The culprits did not very much bother not to make any sounds or noises. P. Ws. 2 to 5 and another son of the deceased, who were sleeping on the western verandah, even though asleep, were woken up by the sounds and went into the northern verandah. The deceased himself was trying to come out from the central hall after opening the doors. Then four culprits pushed him back, threatened him to give the keys of the safe, which the deceased refused to do. P. Ws. 2 to 5 and another son, then went inside the hall and p. Ws. 2 and 3 pursuaded the deceased to hand over the keys. In fact, p. W. 2 requested the persons holding the deceased not to harm him, as they were going to hand over the keys. Pursuaded by the son and the wife, the deceased handed over the keys. Then, three of the culprits demanded p. W. 3 to guide them into thf room where the iron - safe was. The evidence further discloses that p. W. 3, led them into the iron - safe room. P. W. 5 also accompanied her. Though they tried to open the iron - safe by themselves the culprits could not succeed. They insisted upon p. W. 3 to help them, whereupon she pulled out the drawer, took out a key with which the safe was opened. The three raiders, who went into that room, then cleared all the cash that was in the iron - safe bundled it up and brought it into the main hall. Likewise, two of the raiders threatened. P. W. 2 at the point of a knife to take them into the room where the jewellery was kept. P. W. 2 had no alternative but to comply with this demand, since he was placed under grave threat. He accompanied by his younger brother, p. W. 4 took them into the other room where the jewellery and the clothes were kept. While one of the culprits was putting the knife on the chest of p. W. 2, thus threatening him, he focussed a torch light which he had gathered from the hall. With the aid of that light, the other culprit broke open the almirah and the boxes, collected all the jewels and valuable sarees etc. And put them in a rexin box. After finishing this work they also came back into the hall. After all these culprits came back into the hall with their booty, they walked back into the front verandah pushing the deceased with them. P. Ws. 2 to 6 testified to the fact that the raiders raised mao s slogans and also proclaimed that they would rob the rich for benefitting the poor. All this clearly emanates from the evidence of p. Ws. 2 to 6.

(25) Whatever may be the short - comings of their evidence on some minor particulars, the veracity of their testimony on the broad features of the incident cannot be doubted at all. They had no previous enmity towards the accused or the culprits. The fact of the matter is that they were not even acquainted with them before. The culprits were utter strangers to appayya sastry and the members of his family. None of them belonged to the village of podduvaka. Therefore, there is absolutely no reason, for that matter not even a suggestion, why p. Ws. 2 to 6 should speak to a false case of raid and dacoity. Further, their presence on the premises is quite natural as p. W. 3 is the wife of appayya sastry and p. Ws. 2, 4 and 5 are his sons and p. W. 6 is his clerk. This is further reinforced by the strong circumstances that immediately after p. Ws. 2 and 3 brought back the dead body of appayya sastry from kaikalur, p. W. 2, after consulting the mother, p. W. 3, gave a report to the village munsif, exhibit p. 8 which substantially accords with the version of p. Ws. 2 to 6 as to the manner in which the incident occurred. What is more important, as far as this aspect of the case is concerned, is that p. W. 2 gave in exhibit p - 8 itself a list of the several articles and cash that were stolen by the raiders. It is seen from the evidence that exhibit p - 8 was given very soon after the occurrence. Thus, when the evidence of p. Ws. 2 to 6 is taken in conjunction with exhibit p - 8, it is manifest that dacoity was committed by the raiders. Other evidence also shows that recoveries of these articles were made later. We have, therefore, no hesitation to agree with the lower court that dacoity was the common object of the raiders, who had formed themselves into an unlawful assembly.

(26) The further question is whether murder of the deceased also was another common object of the unlawful assembly, learned public prosecutor maintains that the lower court has gone wrong in disagreeing with the prosecution on this aspect. In his submission it is undoubtedly "naxalites" that perpetrated the crime. Naxalites are followers of mao - tse - tung and their declared programme is armed revolution not only to over - throw the established government but also to kill rich persons and landlords. In fact, the evidence discloses that the culprits raised mao's slogans and proclaimed their policy of over - throwing the government and robbing the rich and paying the poor. They came armed with knives and other deadly weapons and some of them actually stabbed the deceased in a very cruel manner, after finishing the looting part of their object. These circumstances, according to the learned public prosecutor, leave no scope for any doubt that killing appayya sastry was one of the common objects of the raiders.

(27) The lower court has rejected the charge of conspiracy under section 120 - b, indian penal code after disbelieving the evidence adduced, in this behalf by the prosecution. There is no appeal by the state against the rejection of the charge under section 120 - b. The evidence relating to the alleged conspiracy should consequently be excluded from consideration in order to find out what exactly was the conspiracy and what its aims were. Learned public prosecutor himself has not relied on any part of the evidence relating to conspiracy to sustain his contention that murder was one of the aims of the raiders. When other evidence is thus not available to show what the common objects of the unlawful assembly, were, they will have to be gathered by the features and circumstances of the case. Some of the important features which should be taken into consideration in that respect are the arms with which the members of the unlawful assembly were armed, the manner in which they conducted themselves while being members of the unlawful assembly, the sequence of events, their overacts while perpetrating the crime, the attitude of other members of the unlawful assembly in regard to the overt acts committed by some of the members and the utterances, if any, they made during the occurrence. It is from these circumstances the common objects of the unlawful assembly are to be gathered. We have already pointed out that committing dacoity was clearly one of the objects. Could the object of murder also be spelled out from the circumstances and features of the case? the lower court did not think so and we are inclined to agree with it in this conclusion.

(28) It is true that the evidence of the witnesses discloses that the raiders raised mao's slogans. P. W. 2 stated that the persons who held his father declared that it was their policy to rob the rich, distribute the booty to the poor and to over - throw the government. P. W. 3, the wife of the deceased deposed that the four persons, who held her husband stated that it was their policy to rob the landlords and distribute the robbed wealth to the poor, and to over - throw the government. P. W. 4 also stated the same thing. None of these witnesses said anything about killing the landlords or rich people nor did they depose to any declaration that they were going to kill appayya sastry. Though, according to these witnesses, the culprits raised mao's slogans and proclaimed as stated above, it does not follow that killing rich landlords or rich people was necessarily a part of their programme. It is true, the small boy p. W. 5 stated that the four persons, who held his father said that their policy was to kill rich landlords besides robbing them. But, the solitary statement, that too of a small boy of tender years could not be preferred to the evidence of p. Ws. 2 to 4. It may be that the so - called "naxalites" might be planning the killing of rich moneylenders and landlords, who in their opinion, were exploiting poor people and were causing them great distress and treating them with cruelty. But the evidence on record discloses that appayya sastry was not one of such persons. On the other hand, a positive picture of appayya sastry emerges from the evidence that he was a non - interfering man, looking after his own affairs, and treating his farm servants and other people with kindness and consideration. It is, therefore, difficult to come to the conclusion that the culprits had pre - planned to kill appayya sastry. The fact remains that several of the culprits were armed with daggers and other deadly weapons and there is also the tragic fact that appayya. Sastry was finally stabbed to death by some of them. Merely arming themselves - with daggers and other deadly weapons would not necessarily lead to the inference that the raiders had planned murder also. It is quite natural for the raiders to have thought that appayya sastry being a rich landlord, some farm servants might be sleeping on his premises. Therefore, they might have come armed with daggers and other weapons to threaten and naturalise all the people, who were on the premises while the looting was taking place. Moreover, in the normal and natural course of human conduct unless one is threatened, he would not part with his possessions. So, it is reasonable to assume that the raiders armed, themselves with daggers to threaten appayya sastry, the members of his family and other possible inmates in order to keep them silent and non - resisting, while they conducted the looting. We are, therefore, not satisfied, that the mere possession of daggers and other deadly weapons by the raiders should necessarily lead to the conclusion that one of the common objects was killing. The evidence of p. W. 2 to 6 further discloses that the raiders were only threatening the deceased and p. Ws. 2 to 6 with daggers without injuring them, until the actual stabbing took place at the fag end of the raid. There is also this important circumstance which would definitely tilt the matter against murder being one of the common objects. Had the raiders pre - planned the killing of appayya sastry, they would have killed him in the main hall itself after the booty was gathered and packed. They would not have thought of bringing him right into the open and stabbing him to death, taking the risk of some neighbours also witnessing the occurrence. It should be borne in mind that the raiders did not keep silent; on the other hand, they were making considerable noise and there was every possibility of the neighbours and some other villagers hearing it. The very circumstances that appayya sastry was brought out not only from the hall but also from the verandah right into the open space in front and was stabbed by the four people who had been holding him would show that it was not premeditated, but the gruesome act was perpetrated on account of some sudden whins of the four persons. Though some witnesses speak to the fact that some of the culprits gathered round the deceased and the persons who were stabbing him, they do not appear to have taken any part in it. On the other hand, one of the persons was calling out that the time was up and that they should leave. The fact that neither p. W. 2 nor p. W. 3 was in any way injured would also reinforce this conclusion that committing violence was not part of the plan. Presumably, the persons, who actually stabbed, developed the idea at the fag end of the occurrence and delivered the blows on the body of the deceased. We are, therefore, inclined to agree with the lower court in rejecting the prosecution contention that committing murder was part of the plan of the unlawful assembly.

(29) The next logical point that should be considered is as to who had actually participated in the raid and whether the prosecution brought home the guilt beyond reasonable doubt to a - 1 to a - 6 and a - 28 to a - 30, who according to the lower court were clearly identified as participants in the unlawful assembly and in the commission of dacoity. Though, the prosecution relies on the identification of some of the accused by some other witnesses, its attempt to establish the guilt of the accused rested mainly on the identification made by p. Ws. 2 to 6. Naturally so because they were the inmates of the hduse at the time of occurrence. Learned counsel for the defence has pointed out some aspects, which according to him, are grave deficiencies in the prosecution case which would vitiate the identification made by p. Ws. 2 to 6. In exhibit p - 8, the report, which p. W. 2 gave to the village munsif soon after the occurrence he did not mention any distinctive features of particulars of the accused, though he claimed in the report that he and the other members of the family could identify the accused. This is our opinion, has no point because in a report of that nature, p. W. 2 cannot be expected to mention any distinctive features of the several accused or even of the four accused who stabbed his father. He, however, stated that he and his members of the family could identify the culprits, if they were shown to them. Another omission in exhibit p - 8 that has been referred to is that it was not mentioned there that a - 4 snatched away the jewels and bangles of p. W. 3 and that a - 6 pulled away the chain from the neck of the deceased. But, it should be remembered that in the report it was clearly mentioned that two persons snatched away these ornaments from the deceased and p. W. 3. Though in the evidence of p. W. 2 stated that he had known one of the culprits as shyam, a worker in the tractor repair shed at mudinepalli he did not refer to him in exhibit p - 8. But, that is a minor detail which need not be stated in a report given soon after the occurrence. It is also argued that when the actual stabbing of the deceased took place, not only the four who had been holding him but also some other raiders surrounded him and it should not have been possible for the prosecution witnesses to have noticed, who actually stabbed the deceased. But, it should not be forgotten that there was moon light at that time and there was also a hurricane lantern hanging from the ceiling of the front verandah. That was also throwing out light on the place where the deceased was stabbed, because it was right in front of the verandah where the lantern was hanging. Even the presence of the hurricane lanterns was doubted, but we are not able to give any credence to this contention. Evidence shows that appayya sastry was having a generator of his own to electrify his house. When the generator had gone out of order, he would naturally have lanterns burning at important places during the night. Witness after witness spoke about the existence of hurricane lanterns. It has been pointed out that exhibit p - 8 does not disclose the existence of these lanterns. It is once again a minor detail which was not necessary for p. W. 2 to mention in exhibit p - 8. It is said that it was past midnight and it would have been impossible for the prosecution witnesses to have noted the details. As we have already pointed out, there was moonlight as spoken to by p. Ws. 2 to 6, and also the light of the hurricane lanterns and in the rooms that of the torch lights. So, there was sufficient light to enable the prosecution witnesses to see the occurrence and the participants. It is of great importance to note at this juncture that p. Ws. 2 to 6 did not exhibit any over - anxiety to identify all the accused. The evidence they gave and the identification they made, show that they had not evidenced any unholy or unjustified interest in roping in as many accused as possible into the crime. Their identification of only a few of the accused as the persons who participated in the raid would show that they were not stooges in the hands of the police, but acted with restraint, honesty and fairness while making the identifications. This is a very important feature of the case which should be borne in mind. As we have said, as many as six identification parades were conducted. All of them were conducted by p. W. 59, the magistrate of gudivada. The first of them was held at kaikalur sub - jail on the 3rd of august, 1970 where 21 accused were put up with several other unconnected persons. P. Ws. 2, 3, 4, 6 9 and 15 were taken there to identify the culprits. P. W. 2 identified a - 2, a - 3, a - 4, a - 5 and a - 7. P. W. 3, identified a - 4, p. W. 4, a - 2 and a - 5; p. W. 6, a - 3 and a - 4; p. W. 9, a - i2 p. W. 15 a - 10 and a - 15 : the next parade was conducted on 6th of august, 1970 at gudivada. Only p. W. 1 was put up for identification along with other unconnected persons. P. Ws. 2, 3, 4, 5 and 6 were taken there. P. Ws. 2 to 5 identified p. W. 1. On 3rd september, 1970 at the parade held at gudivada, a - 1 and a - ao were brought for identification and p. Ws. Z to 6 were taken for identification. P. Ws. 2 to 5 identified a - 1 but could not identify a - 20. P. W. 6 did not identify any one. On 14th september, 1970, the fourth parade was conducted at kaikalur where, a - 8 and a - 11 were put up for identification. P. Ws. 4, 9 and 10 were taken for identification. P. W. 4 identified only a - 8, but could not identify a - 11. P. W. 9 identified a - 11 but could not identify a - 8. P. W. 10 identified a - 8 but could not identify a - 11. The next parade was also held at kaikalur on 17th of october, 1970 where a - 6, a - 8, a - 11, a - 20 ard a - 21 were put up for identification. P. Ws. 2, 9 and 10 were the identifying witnesses. P. W. 2 identified a - 6 alone; p. W. 9, a - 6 and a - 21 and p. W. 10 identified none. A - 28, a - 29 and a - 30 who were arrested or surrendered by this time, were put up for identification at kaikalur on 10th of march, 1971 p. Ws. 2, 9, 15, 23 and 24 were taken for identification. P. W. 2 identified a - 28 and a - 30 in all the three rounds but a - 29 in second and third rounds alone. P. W. 9 identified a - 28 to a - 30; p. W. 15, a - 28 to a - 30; p. W. 23, a - 28 and a - 30 and p. W. 24, a - 29.

(30) Defence counsel has impugned these identification parades as mere farces enacted by the police. A - 1 to a - 28 stated in their section 342, criminal procedure code statements that some of them were shown to the prosecution witnesses and that their photographs also had been taken by the police. Learned counsel before us has argued that these identifying witnesses were earlier shown the accused, who were going to be put up for identification or atleast their photographs. Therefore, no credence could be given to the identification made by the various witnesses at the parades. But these suggestions of the defence cannot be accepted. In the first place, there is no doubt that the identification parades were conducted strictly in accordance with law and in a very impartial manner. The additional judicial first class magistrate, gudivada, who had conducted all the parades at kaikalur and gudivada was examined as p. W. 59. He gave details as to the procedure followed, for holding each one of the parades. The parades were arranged in the sub - jails. The accused were mixed up with several other unconnected persons. They were further given choice to take their own places the rows. The witnesses were kept out of the view of the rows. The magistrate posted a clerk to see that no one could contact the witnesses who were kept in a separate room. No police officers were allowed to have any access to the accused or to the witnesses. After rows were constituted he called the witnesses one after another and got the same witness to identify three times reshuffling the rows at each identification made by each witness. The magistrate also took the precaution that witness or witnesses who had finished the identification were kept in a separate room from the witnesses who were yet to identify. Care was also taken to see that the witness or witnesses who; had finished identification had no access to the witnesses who had yet to do the job. Lists of the persons to be identified, the witnesses to identify and the persons to be mixed up with the persons to be identified were prepared. He described the manner in which he put questions to the identifying witnesses asking them whether they were able to recognise and identify any of the persons who were present at the time of the commission of the crime in the house of appayya sastry. He gave all the particulars as to which witness identified which accused, in what parade. All the connected records relating to the holding of the identification parades were prepared strictly in accordance with the law. Any amount of cross - examination did not throw any doubt or cloud on the propriety or the correctness of the identification parades held. Further, the witnesses themselves denied categorically the suggestion made to them that they had been shown the accused or their photographs before the parades or before they gave evidence in court. Their assertion in this behalf appears to be true, in view of the fact that they could identify in the parades as well as before the court only a few of the accused. Whatever might be said about p. Ws. 4 and 5 who were young boys, p. Ws. 2, 3 and 6 were mature of age. P. W. 2 was in the prime of his youth being only 24 years of age. Had the accused or their photographs been shown to them earlier, undoubtedly they would have been able to identify or made a pretence of identifying more accused in the parades as well as before the court. For these reasons we are not prepared to believe that the parades were not held properly or that the accused or their photographs were shown to the witnesses before the parades or before they gave evidence in court.

(31) .in the lower court the identification by p. Ws. 9, 10, 15, 23 and 24 was assailed also on the ground that it was impossible for them to have seen the accused before or after the occurrence so minutely that they could later identify them in the identification parades. The lower court upheld this contention and rejected the identification made by these witnesses as unreliable. Learned public prosecutor, however, has sought to rely before us on the identification made by p. Ws. 9 and 15 alone and has not adverted to the identification by the other witnesses. We are satisfied that the lower court is fully justified in not relying; on the identification made by p. Ws. 9, 10, 15, 23 and 24. These witnesses stated that they had seen the accused while they were going away from the scene of occurrence. There was some moon - light at that time and according to these witnesses the accused were going in a group of 30 or 40 persons. P. Ws. 9 and 15 said that they were even offered some clothes by the accused. At best these witnesses could have seen the accused for a fleeting, moment, that too in the moonlight in a crowd of 30 or 40 persons. When they saw the accused in such situation, it passes our comprehension how they could identify the accused several months thereafter. We are not, therefore, inclined to accept the identification made by these witnesses. Further, p. W. 9 stated in his evidence that he had informed the investigating officer that he could not identify any one. P. W. 15 in his turn could not identify even the magistrate, who held the parade, nor the hawker who had advised him to take away the sarees that were lying on the road. It is then really surprising ho these two persons could identify ts accused whom they saw only for a mattt of minutes in a large crowd, that too in the moonlight. Therefore, the identification made by p. Ws. 2 to 6 alone remains.

(32) .these witnesses further identified the accused in court alsco p. W. 2 identified a - 2, a - 3 and a - 6 as persons who held: p. W. 6, identified a - 1 and a - 29 the person in photograph exhibit p - 7 and another as those who held and stabbed the deceased; a - 28 and a - 30 as the persons who caught hold of him and took him to jewellery room; a - 6 as the person s, who pulled the locket from the neck of the deceased; a - 4 as the person who removed bangles and rings from p. W. 3; and a - 5 and a - 7 as the persons, who were moving in the room. The broad overt acts were mentioned by him in exhibit p - 8. The village munsif, p. W. 38 sent exhibit p - 8 along with his report exhibit p - 15 to p. W. 73, the sub - inspector of kalidindi at 8 a. M. Thus, the broad features spoker to by p. W. 2 were also mentioned in exhibit t - 8 in giving which there was no delay. P. W. 3, the wife of the deceased identified only a - 1 as one of the four persons who stabbed the deceased and a - 4 as the person who snatched the jewellery from her. P. W. 4, one of the sons of the deceased aged 13 identified a - 1 as the person, who stabbed the deceased; a - 2 as one of the persons who held p. W. 6; a - 5 as the person who was moving about in the house; and a - 8 as the person moving in the compound. P. W. 5 identified a - 1 as one of the persons who stabbed the deceased and a - 2 as one of the persons who held p. W. 6. P. W. 6 however, who was an old man over 60 years and that too without glasses at the time of the occurrence could identify only a - 3 as one of the person who held him. In consequence a - 1 was identified by p. Ws. 2 to 5, a - 2 bv p. Ws. 2, 4 and 5 (the last one only in court) a - 3 by p. Ws. 2 and 6, a - 4 by. P. Ws. 2 an 3, a - 5 by p. Ws. 2 and 4, a - 6 by p. W. 2, a - 28, a - 29 and a - 30 by p. W. 2 alone. It is immediately seen that a - 6, a - 28, a - 29 and a - 30 were identified only by a single witness, viz. , p. W. 2, while the others were identified by atleast two witnesses.

(33) .on the one hand, learned public prosecutor has argued that even if the identification was made of these accused by one witness alone, it should be accepted for the reason that the witnesses had the opportunity of watching the accused for considerable time since the occurrence in the house went on for one and a half hours. Further, he submitted that specified accused participated in specific overt acts and this circumstance would have naturally helped the witnesses, to make the identification. On the other hand, for the defence it has been argued that the identification of some of the accused by p. Ws. 4 and 5, who were small boys of 13 and 11 years, could not be taken into account at all. Therefore, the identification of p. W. 4 of accused 2, 5 and 8 and p. W. 5's, identification of a - 1 and a - 2 should be excluded from consideration. We are, however, unable to accede to this argument. It is true that the two witnesses were boys of 13 and 11 years. But, before their testimony was recorded, the learned sessions judge took care to ascertain and satisfy himself whether they were able to give cogent answers to the questions put to them. In regard to both of them he was satisfied about their ability to give cogent evidence. Once their capacity was thus tested, we cannot rule out their identification from consideration.

(34) Going by this identification what is the result that emerges? a - 1 was identified by p. Ws. 2 to 5 in court. Their identification of the accused in the identification parades can only corroborate their identification in court and the identification made in court is the most important basis. When all the four witnesses, who had watched the occurrence from the beginning to the end spoke in the voice that a - 1 was one of the persons who pushed the deceased back into the hall, held him, later brought him out into the verandah and then pulled him out into the open space and then stabbed him, it is not possible to reject this evidence. As we have already pointed out p. Ws. 2 to 6 have not shown eagerness or undue enthusiasm in incriminating any one or as many persons as possible. Therefore, when all the: four witnesses identified a - 1, especially when they had an opportunity of watching the occurrence for an hour and more and seeing the overt acts that had been committed, we feel no hesitation in believing that he was one of the members of the unlawful assembly and one of the four persons who stabbed the deceased. We may notice here two or three contentions raised on his behalf by bis learned counsel. It has been pointed out that in the preliminary charge sheet, a - 1 was not represented as one of those who pushed the deceased back into the main hall. But in our opinion, that is of no material consequence. Even supposing that preliminary charge sheet can be taken into consideration, it is clear that even in it, a - 1 was described as one of the persons who actually stabbed the deceased. The other circumstance pointed out is that when the prosecution witnesses themselves stated that several people surrounded the deceased in the open place, it should not have been possible for p. Ws. 2 to 5 to watch clearly in that weak moonlight who actually stabbed him. It may be recalled that in addition to the moon light there was the light thrown on the scene by the hurricane lantern hanging on a rod from the ceiling of the front verandah. Moreover, p. Ws. 2 and 3 stated that as the intention of the four persons to injure the deceased was noticed p. W. 3 tried to intervene, but she was pushed away. There is no surprise then that p. Ws. 2 to 5 could actually notice who had stabbed the deceased. A discrepancy between the evidence of p. W. 2 on the one hand and that of p. Ws. 3, 4 and 5 on the other has been strongly relied on by the learned defence counsel, and, in his submission, this discrepancy would throw considerable doubt as to the persons who actually held the deceased and later stabbed him. It is true this discrepancy pointed out by the learned counsel is there. P. W. 2 stated that the four persons who pushed the deceased back into the hall continued to hold him in their grip until the looting was over. Three other persons came from the front verandah into the hall, took the keys of the iron safe from the deceased and asked p. W. 3 to take them to the iron safe room. The four persons, according to this witness, continued to hold on to the deceased. But, according to p. Ws. 3, 4 and 5, three of the four persons, who were holding the deceased took the keys and asked p. W. 3 to lead them into the iron safe room. It was they that removed the cash from the iron safe and came back to the hall. Since all of the p. Ws. 2 to 5 said that it was the four persons who were holding the deceased that ultimately stabbed him, this discrepancy in the evidence of the witnesses inter se throws considerable doubt as to who participated in holding the deceased and finally stabling him. In our view, however, this discrepancy though it is there, is not of any particular significance. Even if three of the four persons who were holding the deceased went into the cash room and came back, all the four witnesses were unanimous in saying that it is these four persons who took him out into the verandah, from there into the open space and there stabbed him. Even if three of them, for about 20 minutes or half an our, went into the iron safe room to get the cash, it would not in any way affect the prosecution case, or the p. Ws. 2 to 5 identifying these persons. What is most important is that the four witnesses in one voice swore to the fact that a - 1 was one of the four who stabbed the deceased. In addition, some articles that were stolen from the house of the deceased at the time of dacoity were recovered from a - 1. We have, therefore, no hesitation in agreeing with the lower court in holding that a - 1 was one of the persons, who participated in the crime, and one of the four, who stabbed the deceased.

(35) .however, the same thing cannot be said about a - 29 as having been one of the four persons who stabbed the deceased, in the court he was identified only by p. W. 2 and by nobody else. He and a - 28 and a - 30 either surrendered or were arrested in january or february, 1971. So, a separate parade was held for their identification on 10th of march, 1971 at kaikalur. P. Ws. 2, 19, 15, 23 and 24 figured as the identifying witnesses at the parade. We have already given our reasons agreeing with the trial court why the identification said to have been, made by p. Ws. 9, 15 ,23 and 24 cannot be relied on. Then remains only p. W. 2. Curiously, even he could not first place and recognise a - 29 in the first round. He could make the recognition only in the second and third rounds. That shows that p. W. 2 himself felt some difficulty and doubt in recognizing this accused at the parade. It is also significant that at the time of trial no other witness than p. W. 2 could identify a - 29 the prosecution would have it that this accused had played the same role as a - 1 played. Whatever overt acts a - 1 did, a - 29 is also alleged to have done. Nevertheless p. Ws. 3 to 6 could not identify him at the trial. Learned public prosecutor has emphasized on the aspect that it would be easy for the witnesses to notice, remember, recognise and identify these accused not only because they were in the house of the deceased for one to one and a half hours, but also because they played active and specific roles in the tragedy that took place. Nonetheless it is surprising that p. W. 2 alone could identify a - 29, while p. Ws. 2 to 5 had no hesitation at all in recognising a - 1 as one of the four persons who stabbed the deceased. It must also be remembered that p. W. 3 went right up to the accused to plead for the life of her husband when she scented that they were going to stab him, but she was pushed aside. It is very significant that even she failed to identify a - 29 as one of the persons who held her husband all the time and as one of the persons who stabbed him. This logically leads to a reasonable doubt as to the correctness of identification of a - 29 by p. W. 2. What is more, the identification parade concerning this accused was held nearly 11 months after the occurrence while the parades in regard to the other accused had been held earlier. The longer the delay in holding the identification parade, the greater would be the difficulty for the witness to make proper identification and consequently the greater would be the doubt about its correctness. Equally important is the circumstances that no recovery of any of the articles stolen from the house of the deceased was made from him.

(36) .we are thus left with the identification of a - 29 by p. W. 2 alone. Is it safe to rest the conviction of the accused on the evidence given by a single witness? it is true, that under the evidence act an accused can be convicted even on the basis of a single witness's evidence, if that evidence is found to be trustworthy. On the other hand, evidence given by a large number of witnesses would not be sufficient to sustain a conviction if it is not trustworthy. But, where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders who were utter strangers to the witnesses and " whom they had never before seen in their lives and whom they saw for the first time during the course of the commission of the offence, which was frightening and nerveracking in its nature and impact, it is not safe to rely on the identification by a solitary tary witness to convict an accused. In the foregoing paragraphs we have described in detail the manner in which the offence was committed. There were a large number of raiders, the time was at the dead of night and the culprits were armed with dangerous weapons. In these circumstances the power of observation of the witnesses and their ability to remember the raiders would have been affected and impaired at least to some extent. When such was the case as gajendra - gadkar, c. J. , laid down in masa ti v. State of uttar pradesh, it is usual to adopt the test that the conviction can be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. As the learned chief justice pointed out, the test may be somewhat of a mechanical nature. But, it cannot be condemned as irrational or unreasonable. Generally speaking, it is not the quantity of evidence or the number of witnesses that matter, it is the quality or trustworthiness of the evidence that counts. But, in view of all the circumstances we have mentioned, we do not feel it safe to convict a - 29 wholly and solely on the basis of the identification made by p. W. 2 alone when others, though present along with p. W. 2, failed to recognise him. The other circumstances pointed out by us add to this doubt. We are, therefore, of the opinion that a - 29 is entitled to the benefit of this doubt.

(37) .learned public prosecutor has also emphasised on two other features of the case against a - 29. In his submission - and that was the opinion of the trial court as well - the identification of this accused though by p. W. 2 alone, has received corroboration in a general way from p. Ws. 3 to 5. The prosecution has stated that those four raiders, who had pushed the deceased back into the hall, continued to hold him, brought him again into the front verandah after the looting was over, were the same who as a finale to the tragedy, pulled to out into the front open space and bed him. It has been pressed before that p. Ws. 3 to 5, also have clearly brought out this feature of the occurrence and thus corroborated p. W. 2; so much so the categorical assertion of p. W. 2 that a - 29 was one of those four, must be deemed to have received support from p. Ws. 3 to 5. This line of reasoning does not carry conviction to vs. It is one thing to say that the same four individuals who had held the deceased in the hall, later stabbed him; but identification of those four persons is altogether a different matter. The unhappy fact remains though p. Ws. 3 to 5 had watched the four persons, along with p. W. 2, they could not identify a - 29 as one of them. Thus, the doubt as to the identity of a - 29 as one of the four participants in the stabbing persists, though p. Ws. 2 to 5 have spoken uniformly about the broad lines on which the occurrence had taken place.

(38) .the other aspect pointed out by the learned public prosecutor is the refusal of a - 29 to set up any defence, or to cross - examine prosecution witnesses or to in any way participate in the trial. This accused also refused to sign papers relating to the appeal to be presented to this court. An inference has been sought to be drawn from this conduct of the accused, that he is a naxalite who has no faith in courts of law and consequently he must have participated in the naxalite raid on the house of the deceased. The courts of justice are not and should not be impeded or influenced in the discharge of their functions and duties by the attitudes adopted by the accused put up before them for trial. It is the basic and also sacred duty of the courts to administer justice in accordance with the laws of the land, irrespective of the postures taken up by the accused. When a reasonable doubt exists in the mind of the court after careful scrutiny of the evidence and the circumstances of the case, the benefit of that doubt should be given to the accused, as requred by the criminal jurisprudence of this country, whatever be his political and social views and even if he has taken up a non - co - operative and even a defiant stand during the trial. Indisputably, a doubt exists and persists in our minds as to whether a - 29 was also a participant in the raid and one of the four persons, who had held the deceased and stabbed him. He is entitled to its benefit. Accordingly, disagreeing with the lower court, we hold that the presence and participation of a - 29 has not been established by the prosecution beyond reasonble doubt.

(39) .a - 6, a - 28 and a - 30 are likewise entitled to the benefit of similar doubt. They were also identified only by p. W. 2 and none else. A - 6 is alleged to have snatched the chain and locket from the neck of the deceased. But, neither p. W 3 nor any other of the eye witnesses has been able to identify him. A - 28 and a - 30 are alleged to have forced p. W. 2 to go into the jewellery room. P. W. 4 also accompanied his brother and the two accused into that room. He was present in the room as long as a - 2 was there. But, even he failed to identify the accused. Applying the same principle, that we have done to a - 29, we feel it unsafe to believe the presence of a - 6, a - 28 and a - 30 at the occurrence and their participation in it. Indeed, the lower court acquitted a - 7 on the ground that he was identified by p. W. 2 alone and by none else. The same benefit of doubt should be given to a - 29 and also a - 6, a - 28 and a - 30. Since they have not been convicted by the lower court under section 412, indian i penal code but have been convicted only under sections 396, 449, and 460 indian penal code. A - 29 under section 302 read with section 34 and under section 148 indian penal code and a - 6, a - 28 and a - 30 under section 147, indian penal code they are entitled to be acquitted of all these charges. The convictions given by the trial court against these accused and the sentences imposed on them are set aside and the accused are acquitted

(40) .in regard to the other accused convicted by the lower court as participants in the raid, a - 2 was identified by p. Ws. 2 2, 4 and 5, the last witness court only. A - 3 was identified by p. Ws. 2 and 6; a - 4 by p. Ws. 2 and 3 and a - 5 by p. Ws. 2 and 4. Thus, in regard to each one of these accused i. E. , a - 2 to a - 5 they were identified by at least two eye witnesses. Some of the stolen articles were also recovered from them. Therefore, we have no doubt, as the lower court has done, in regard, to the participation of these four accused (a - 2 to a - 5) along with a - 1 in the raid.

(41) .a special argument in respect of a - 4 need be considered. It is based on alibi. Resting the case on exhibits d - 124 to d - 126 and the evidence of d. W. 2, it has been argued that at the time of occurrence, he could not have been in poddu - vaka, as he was attending the marriage of his sister's daughter at kothapalcm a far away place in divi taluk. D. W. 2 is the wife of a - 4 and stated that he made some presents to his niece at the marriage time. This evidence did not satisfy the lower court and rightly in our opinion. A - 4's father and brother are alive. Neither any of the two nor any of the parents of the bride was examined. None of the documents show the presence of the accused at the marriage. So, this alibi evidence is unreliable.

(42) Then the question is: what offences have these accused (a - 2 to a - 5) committed ? one of the convictions of all these accused given by the lower court is under section 396, indian penal code. That is a provision for punishment for dacoity with murder. Section 391 indian penal code, defines dacoity. The essential ingredients of that offence are that there should be five or more persons and they should conjointly commit or attempt to commit a robbery. The evidence of p. Ws. 2 to 6, which draws support from exhibit p - 8, discloses that very many articles were stolen by the raiders. Thus, theft in the case is manifest. That it is of the nature of robbery as defined by section 390, indian penal code, is also clear because while committing the theft, some of the culprits voluntarily caused the death of appayya sastry. When five or more persons conjointly commit a robbery, then it becomes dacoity. In this case, it is abun - dantly established that more than five persons had participated in committing the robbery. Thus, the requirements of section 391, indian penal code are satisfied in the case. Since appayya sastry was murdered in the course of dacoity section, 396 indian penal code is attracted. A - 1 to a - 5, who had conjointly committed dacoity, in the course of perpetration of which appayya sastry was murdered, all the five are liable to be convicted under section 396, indian penal code. The lower court is clearly justified in convicting these five accused under section 396, indian penal code.

(43) .in this context we must take note of an argument advanced by one of the learned counsel for the defence that in this case, section 396, indian penal code, is not attracted because appayya sastry was not murdered while committing dacoity. In the submission of the learned counsel, sastry was stabbed as the raiders were leaving and not when the actual looting place. Therefore, he has contended that section 396 cannot be applied to the case. This argument cannot be countenanced at all. What section 396 indian penal code requires is that the murder should be committed in mmitt - ing dacoity. The act and nee of dacoity starts from the entry of "aiders into the premises where the imposed to commit robbery and ends with their departure from the premises. So long as the culprits remained on the premises the process of dacoity continues. In fact, when the raiders, the deceased and the eye witnesses came out into the front verandah, two of the culprits pulled out the chains, rings and bangles from the deceased and p. W. 3. Immediately, thereafter they pulled the deceased into the open space and stabbed him. Only thereafter the raiders left the place. Since the act of dacoity continued until their departure and the murder of appayya sastry had taken place before their departure, there is no doubt that the murder was committed in the course of committing dacoity. This objection raised for the defence, should, therefore, be rejected.

(44) .in regard to the sentence for this offence the lower court awarded seven years rigorous imprisonment. section 396, indian penal code, provides for punishment of death or imprisonment for life or rigorous imprisonment for a term, which may extend to ten years. When such is the limit for the punishment for committing dacoity with murder, we think that the seven years rigorous imprisonment imposed by the lower court is rather lenient, particularly in view of the grave crime that was perpetrated by the raiders by not only committing dacoity but also in its course an innocent man lost his life. Since there is no revision, by the state against this sentence we confirm it.

(45) .these accused were also convicted under section 460, indian penal code for house - breaking by night where death was caused by one of the raiders. All the ingredients of section 460, indian penal code are also satisfied. House - breaking is defined in section 445, indian penal code. According to it a person is said to commit house - breaking, if he effects his entrance into the house or any part of it in any of the six ways described in it. The fifth way is effecting the entrance or departure bv using criminal force or committing an assault or by threatening any person with assault. The evidence of the eye witnesses firmly establishes that the raiders effected their entrance by using criminal force and also departed by using criminal force. There is thus no doubt that they committed house - breaking as defined by section 445. And this house - breaking was by night since it was committed at about 1 a. M. On the night between 26th and 27th of april, 1970. Some of the raiders caused the death of appayya sastry and so section 460, indian penal code is also attracted.

(46) We may here notice one or two contentions raised for the defence in regard to the conviction under section 460, indian penal code. As was contended in respect of the offence under section 396, indian penal code it was also argued that in order to attract section 460, indian penal code, causing death should take place at the time of house - breaking by night. The same reasoning which applied to the rejection of this contention in regard to the offence under section 396 indian penal code applies to this also. The accused must be deemed to be continuing the offence of house - breaking by night until they departed from the premises; and since the murder of appayya sastry was committed before their departure, it must be held that the murder was done in the course of committing house - breaking by night.

(47) .another argument is that a - 1 who was convicted under the more serious offence of murder under section 302 read with section 34, indian penal code should not have been convicted under section 460, indian penal code. The discussion on this point is merely academic as it does not bring any real benefit to a - 1. Since all the sentences were directed by the lower court to run concurrently, this contention, even if it succeeds, would not confer any practical benefit on a - 1. However, since it has been raised we would like to briefly refer to it. Learned counsel for the defence relies upon the decision of a bench of the allahabad high court in jagdeo v. State which, took the view that section 460 dian penal code, makes those, who the person who voluntarily causes or attempts to cause death or grievous hurt while committing breaking house trespass or house - breaking at night, liable to enhanced, punishment for their own conduct of simply committing such lurking house trespass by night or house - breaking by night. The person who actually acts in that manner will not be liable for that conduct of his under section 460, indian penal; code, but will be liable under other sections making that conduct an offence. In coming to this conclusion raghubar dayal, j who spoke for the court observed that the person who actually commits the murder or grievous hurt will be punishable with enhanced punishment and the expression in section 460. , indian penal code "every person jointly concerned in committing such lurking house - trespass by night or house - breaking by night" must mean every "other" person who was jointly concerned with him in committing the lurking house - tresj. Ass or house - breaking by night. Thus, the learned judge was prepared to introduce the word "other" while construing the expression " every person jointly concerned. "

(48) .learned public prosecutor, however refers to sohan singh v. State. That is also a bench decision. Dua, j. , speaking for the bench, expressed the view that to attract section 460, indian penal code, it matters little as to who actually causes , the death, for every one jointly concerned in committing the house breaking is liable to the enhanced penalty if death is caused in the course of the offence, no matter who is really responsible for the deaths the section does not serve as an exception" to section 302, indian penal code.

(49) .we are not inclined to read the word "other" in section 460, indian penal code which is not there. The plain meaning of section 460, indian penal code, shows that all those persons who commit house - breaking by night should be liable to be convicted thereunder, since the section in so many words categorically lays down that every person jointly concerned in committing such house breaking by night shall be punished therefor. It does not exclude from such punishment, the person who caused or attempted to cause death or grievous hurt from the scope of punishment. On the other hand, the words "every person jointly concerned in committing house - breaking by night shall be punished" establishes beyond doubt the intention of the legislature that all persons who had committed house - breakir g, whatever other offences they might have also committed, would be liable to be pui ished under section 4. 60, indian penal code. It is undoubted that a - 1 could not have committed the murder of appayya sastry without house - breaking into his house that night. We are consequently of the opinion that the lower court is justified in convicting a - 1 also under section 460, indian penal code. The punishment awarded by the lower court for the offence under section 460, indian penal code was four years. We do not think that it is unreasonable. We, therefore, confirm the conviction of a - 1 to a - 5 under section 460 indian penal code and the sentence of four years rigorous imprisonment imposed on them under this count.

(50) .the learned public prosecutor fairly conceded that he could not support the further conviction under section 449, indian penal code. We, therefore, set aside that convictior and the sentence awarded under this count.

(51) .there has been no attempt to canvass the correctness of the conviction under section 147, indian penal code. But, it must be noted that this conviction by the lower court was only against a - 2 to a - 6, a - 28 and a - 30. We have already given the benefit of doubt to a - 6, a - 28 and a - 30 and held that they are entitled to be acquitted. Consequently, only a - 2 to a - 5 remain, in so far as this charge is concerned. Their conviction under section 147, indian penal code, and the sentence of one year's rigorous imprisonment for the said offence are confirmed.

(52) .we now proceed to consider the most gruesome part of the crime, namely the stabbing of appayya sastry. The prosecution evidence clearly establishes that four persons stabbed him in the open space in front of the house, as the last act of the raid. P. W. 30, the doctor at kaikalur who did the autopsy on the dead body and gave exhibit p - 2i, the postmortem certificate listed as many as nine injuries on the body. Most of them were either stab wourds or incised wounds, or punctured wounds. The first injury pierced the lower border of the lung, the right half of the diaphram and the right lobe of liver from superior side. External injuries 1 and 4 and the corresponding internal injuries were fatal. There is thus no doubt that the stabbing was indiscriminate and cruel and was done with the definite intention to kill.

(53) .we have already recorded our agreement with the lower court in its finding that the common object of the unlawful assembly of the raiders was not to commit murder. The four persons who held him and dragged him out, must have developed, on the spur of the moment, the intention to kill appayya sastry. It follows that those four persons are liable to be convicted under section 302, read with section 34, indian penal code.

(54) .of the four a - 1 alone, in our opinion is now properly identified. So, the lower court is right in convicting him under section 302, read with section 34, indian penal code.

(55) .the next question is one of sentence to be imposed on him on this count. The trial court awarded death sentence to him for this charge. While the defence counsel has argued that this extreme penalty should not have been imposed, learned public prosecutor maintained that the circumstances of the case and the cruel manner in which the four persons had murdered an innocent person, after looting his house, would warrant nothing, less. While the defence relied on the decision of this court in r. T. No. 20 of 1970, dated 1st march, 1971, learned public prosecutor invoked to his aid the ruling in r. T. No. 1 of 1971, dated 25th june, 1971. The two division benches approached the problem of sentence from two opposite view points and different social philosophies behind criminal jurisj rudence. We would not have hesitated to state our own views on the matter, had this case required such an expression. However, for the purposes of this case, it is not necessary to step into that controversial but interesting field.

(56) .we have already referred to the medical evidence and the nature of injuries caused to the deceased and the cause of his death external injuries 1 and 4 were found to be fatal. Unfortunately there is no evidence in the case as to which person caused which injury and who was responsible for the fatal injuries. P. Ws. 2 to 5 only stated that four persons stabbed the deceased with daggers. Beyond this, there is no further information as to wounds caused to the deceased. Thus, it is not possible to say what injuries a - 1 caused and whether they were fatal. In these circumstances, we do not think that we would be justified in visiting a - 1 with death penalty. Life sentence, in our view, would satisfy the requirements of justice. We are fortified in this view by the following statement of the law by the supreme court in dalip singh v. State of punjab, at page 368, paragraph 40.

"this is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases."

(57) .we may also usefully refer to a recent decision of the supreme court in apren joseph v. State of kerala, where it was held that after the amendment of section 367 (5) , criminal procedure code, in 1955, it is a matter of judicial discretion for the court to decide on the consideration of all the relevant circumstances of the case, which of the two permissible sentences under section 302, indian penal code, should be imposed.

(58) .accordingly, while we confirm the conviction of a - 1 under section 303, indian penal code, read with section 34, indian penal code,we alter the sentence on that count to one of life imprisonment,

(59) .the conviction of a - 1 under section 148, indian penal code, and the sentence of two years' rigorous imprisonment given under this head has not been canvassed before us. The ingredients of that section are satisfied and the lower court is right in convicting the accused and sentencing him to two years rigorous imprisonment. They are confirmed accordingly.

(60) .now remains the charge under section 412, indian penal code. This section provides punishment for dishonestly receiving properties stolen in the commission of dacoity. The lower court convicted under this charge a - 1 to a - 5, a - 8 to a - 10, a - 12 to a - 27 and sentenced each one of them to undergo rigorous imprisonment for three years. Learned counsel for the accused - appellants argued that the whole story of recovery of articles said to have been stolen at the time of dacoity is highly artificial. Practically all the articles said to have been stolen were finally recovered as per the prosecution story. By itself it is an improbable claim made by the police. It is also wholly unnatural for the different accused to have produced the stolen articles straightaway when asked by the police, as the evidence of the police officers would disclose. It appears from the evidence of p. W. 74, the investigating officer that he got most of the information in may itself, nonetheless, the earliest arrest he made was on 24th of june, 1970. This delay in making arrest is very much fatal to the prosecution case. Simultaneously with the arrests, the recoveries were made on the statements made by the arrested persons. It is also an unnatural feature of the case that all the properties should have been recovered in their original shape and form, including the gold jewels. The manner of the accused confessing and handing over articles is highly improbable. The recovery of a crowbar and a rope from a - 16 is preposterous. They are such common articles that they could be found in any peasant's house. The recoveries from a - 1 were six month's later and they were langas and jackets. These are general criticisms made against the recoveries made from the accused.

(61) .these points made by the learned counsel for the defence do not impress us. There cannot be any doubt that quite a large number of articles, including cash and jewellery were stolen from the house of appayya sastry at the time of the dacoity. The fact that they were all mentioned in a list even in exhibit p - 8, report given by p. W. 2 immediately after he brought back the body of the deceased from kailkalur, would clinch the issue in favour of prosecution and establishes that all these articles were stolen from the house. According to the idealogy of the raiders that the rich should be robbed and the booty should be distributed amongst the poor, there is no wonder that the stolen articles were distributed amongst themselves. Furthermore, no single individual or two or three of them could have kept all the articles and disposed them off. Nor is it possible to expect the culprits to have ventured to sell them away soon after the occurrerce. The dacoity accompanied by murder should have caused great sensation in the locality and there should have been lot of publicity about it. That is evident from the fact that quite a large police force was deployed to make the investigation, who combed the entire district of krishna for the culprits and for recovering the stolen articles. When the culprits knew that the police were on the look out, naturally they would have been very careful and could not have freely disposed them off. That is how when the police got information about the accused and were able to arrest them they could easily recover the articles. Thus, we see no inherent improbability or artificiality in the case of the prosecution in regard to the recoveries.

(62) In addition, there is a large volume of evidence produced by the police to prove the recoveries. P. W. 74, the invesigating officer, gave evidence about the arrests of a - 2, a - 16, a - 22 and a - 24 on 26th of june, 1970 and a - 15 on 31st of july, 1970. He spoke about all the articles recovered from them. When recoveries were made the procedure prescribed in this behalf was followed. Mediator reports were prepared. In fact, the mediators themselves were examined.

(63) .p. W. 64, is the inspector of police, machilipatnam, and he deposed about the arrest of and recoveries from a - 19, a - 26 and a - 27 on 25th of june, 1970 in a coffee hotel in nuzvid. He recovered some articles from the persons of some of these accused and some others on the information furnished by them. The mediator reports for the seizure of these articles were produced and the mediators concerned with the seizures were also examined. The recoveries from these witnesses are supported by the evidence of p. Ws. 42, 43 and 44, who had purchased these articles from the accused. P. W. 44 is a civil assistant surgeon. There is no doubt that p. Ws. 42 to 44 are independent witnesses and there is no reason to doubt their evidence. Thus, recoveries from a - 19, a - 26 and a - 27 were. Fully proved.

(64) In regard to a - 19 and a - 26, the defence examined d. W. 4, who stated that the two witnesses were arrested on 27th of may, 1970 and not on 25th of june, 1970 as stated by the prosecution. When there is so much evidence for the prosecution in regard to the arrest and recoveries of articles on information furnished by these accused, there could not be any hesitation in convicting the accused for this charge.

(65) .p. W. 65, another police officer arrested a - 7, a - 8 and a - 13 at vijayawada; a - 8 on 5th july, 1970 and a - 7 and a - 13 on 10th of july, 1970. Mediators reports and the mediators for the seizure of the articles from these accused were produced and examined. In regard to a - 8, d. W. 1 was examined to state that a - 8, being a railway employee, was allotted railway quarters, but, according to p. W. 65, the accused was arrested in a private house in arundelpet, vijayawada. It was, therefore, argued on behalf of the accused that the version of the police could not have been true. Further, p. W. 65 did not know the door number of the house nor the name of the street in which the accused was arrested. We are not pursuaded to accept this contention. Generally speaking, it could not be possible for the police officer to remember the door number and the street name in which he had arrested a particular accused. Even if it is true that a - 8 was allotted a railway quarter, there was nothing which prevented the accused from staying in a private house in arundelpet at the time of arrest. Therefore d. W. 1's evidence is of no use at all. P. Ws. 48 and 49 were the mediators at the time of seizure of articles from the accused. The evidence of p. W. 65 is fully supported by their evidence. Therefore there is no doubt about the correctness of the prosecution version.

(66) .p. W. 66, sub - inspector of police, vuyyur, testified to the arrest of a - 12 and a - 14 on 9th and 5th july, 1970 respectively and to the recoveries made from them. Once again these recoveries were properly made under mediator reports. They were all placed before the court.

(67) .though p. W. 68 spoke about the arrest of a - 30 there were no recoveries from him and the lower court consequently acquitted him under section 412, indian penal code also. Since there is no appeal by the state in regard to this accused under this count, it is not necessary for us to consider the case about him.

(68) Then, p. W. 69, the sub - inspector of inuguduru, deposed about the arrest of a - 3, a - 4 and a - 5 on a6th of june, 1970 at machiliptnam. Whatever was recovered from them was seized under mediator reports and the mediators also were examined. It is pointed out that p. W. 45, who was the panch for recovery of some articles from a - 5 could not identify a - 5. His inability to identify a - 5 is immaterial in our opinion, because he merely acted as a panch for recovery of the articles and it is quite possible that he had forgotten the person from whom the articles were seized. It does not, therefore, vitiate the prosecution case in this behalf.

(69) P. W. 72, the sub - inspector of police of robotsonpet in machilipatnam arrested a - 10 on 17th of july, 1970 at robotsonpet, machilipatnam and on his information recovered some articles. That was also done in accordance with the prescribed procedure and the necessary evidence was placed before the court. It has, however, been pointed out by the defence counsel that the maternal uncle in whose compound a saree was dug out and seized on the information of a - 10 was not examined. When the panch was examined we do not think it was necessary to examine the maternal uncle also.

(70) P. W. 73, the sub - inspector of kalidindi, spoke about the arrest of a - 17,, a - 18, a - 9 and a - 23 on 25th of june, 1970 at the house of a. 17 and recovery of some articles from them. The mediator was examined as p. W. 40 and the recoveries from these accused were thus satisfactorily established. In regard to a - 18 a special argument was advanced. He was alleged to have been the tenant of d. W. 3 at that time. But, when he was examined by the defence, d. W - 3 stated that a - 18 was not his tenant but of one sakuntalamma. It is wholly immaterial whose tenant he was once it was proved that recoveries were properly made from him.

(71) .p. W. 74, the investigating officer, arrested p. W. 1, a - 1, a - 20 and a - 25 d. W. 5 was examined by the defence to say that a - 25 was arrested even much earlier on 25th of may, 1970. But, there is no reason to doubt the evidence of p. W. 74, particularly when it is supported by a large volume of evidence. It was also pointed out that a - 20 and a - 21 were not in the preliminary charge - sheet and they were falsely implicated by the time the final charge - sheet was filed. We do not see any significance in not including these two accused in the preliminary charge - sheet. The police gathered information about the accused only after the filing of the preliminary charge - sheet and consequently included them in the final charge - sheet.

(72) .we may notice here the argument that there is no evidence that the accused from whom the recoveries made had know ledge that the articles had been stolen by committing dacoity, so as to attract section 412. The fact of dacoity was well - known in the area. That apart, the very circumstance that the accused yielded up the articles on being arrested and questioned would show that they had the requisite knowledge of the dacoity. Thus, there is no technical defect in the conviction under section 412, indian penal code.

(73) .thus, there is a large volume of satisfactory evidence about the recoveries from all these accused, who have been convicted by the lower court under section 412, indian penal code. We fail to see any reason to interfere with that finding. We accordingly confirm the conviction of all these accused under section 412, indian penal code, and also the sentence awarded to them under this count.

(74) .in the result, a - 6, a - 28, a - 29 and a - 30 are completely acquitted of all the charges. The conviction of a - 1 under section 302, read with section 34, indian penal code and section 148, indian penal code are confirmed, but the sentence of death imposed on the first count is altered to one of life imprisonment and the sentence of two years' under section 148, indian penal code,, is confirmed. The convictions and sentences of a - 1 to a - 5 under section 449, indian penal code, are set aside, but their convictions and sentences under sections 396, and 460, indian penal code, are confirmed. Likewise, the conviction and sentence under section 412, indian penal code of a - 1 to a - 5 - , a - 8 to a - 10, a - 12 to a - 27 are confirmed. Further, the conviction of a - 2 to a - 5 under section 147, indian penal code and the sentence of one year's rigorous imprisonment awarded for this offence are also confirmed. All these sentences :are to run concurrently.

(75) Accordingly we alter the convict tions and sentence in r. T. No. 19 of 1972 as stated above, partly allow crl. A. No. 565 of 1972, preferred by some of the accused and dismiss crl. A. No. 802 of 1972 preferred by the state. Convictions in r. T. No. 190/1972 - confirmed, sentence altered to life imprisonment. Crl. A. No. 565 of 1972 - partly allowed a - 6, a - 28 and a 30 are acquitted crl. A no. 802 of 1972 dismissed.